How a New Brunswick Court Decides Parenting Time Between Parents

If you and the other parent cannot agree on where your child will spend their time, a judge in the Family Division may have to decide. It helps to understand what the judge looks at, because the focus is the child and not the fairness of the outcome between the parents.

This article walks through the vocabulary, the test the court applies, the kinds of evidence that matter and the usual path through the process. Every family is different, so treat this as general information.

This article covers the law of New Brunswick.

The words the law uses

New Brunswick's Family Law Act uses decision-making responsibility and parenting time instead of the older terms custody and access. Decision-making responsibility means making significant decisions about a child's well-being, including health, education, culture and religion, and significant extra-curricular activities. Parenting time is the time a child spends in the care of a parent or person standing in a parent's place.

Under the Divorce Act, the person with parenting time generally has exclusive authority to make day-to-day decisions during that time, unless the court orders otherwise. Decision-making responsibility may be given to one spouse, both spouses or others.

The test: the child's best interests

In making a parenting order or contact order under the Family Law Act, the Court considers only the best interests of the child, and gives primary consideration to the child's physical, emotional and psychological safety. The Divorce Act takes the same approach, adding that family violence and its impact are a listed factor.

A child should have as much time with each parent as is consistent with their best interests. That is a guide, not a guarantee of equal time. Where a child has more than one parent, the parents share parenting time and decision-making responsibility unless a written agreement or court order says otherwise. The actual schedule still depends on the best-interests test, not on an equal-time formula.

What evidence tends to matter

Because the judge is looking at the child's circumstances, useful evidence is usually practical and specific. Common examples include:

• A record of who has handled school, medical and daily routines
• Calendars or messages showing past schedules and how well they worked
• Information about each home, including space, location and routines
• Any safety concerns, with dates and supporting documents
• Evidence of how well each parent communicates and cooperates

If family violence is part of your situation, tell your lawyer and the court. It is a listed factor and safety is given primary consideration.

What the process looks like

The Court of King's Bench, Family Division, handles divorce, Family Law Act matters such as parenting and support, and related family proceedings. Under the Family Law Act, a parent or a person standing in a parent's place can apply for a parenting order. An order can be for a definite or indefinite period or until a specified event.

In a divorce, parents are expected to try to resolve the matters that may be the subject of an order, including through family dispute resolution processes, to the extent appropriate. A negotiated plan often fits a child's life better than an imposed one. For jurisdiction, the Court may make or vary a parenting order if the child is habitually resident in New Brunswick when the application begins.

Moving after an order

Relocation can reopen the question. In a divorce, a parent who intends to relocate must give written notice in the prescribed form at least 60 days before the move, although the court can modify or waive the notice requirements, including where there is a risk of family violence. The move may proceed if the court authorizes it or the other party does not object within 30 days and no order prohibits it. Unmarried parents use similar rules under the Family Law Act. Where the parties substantially comply with an order or agreement giving them substantially equal parenting time, the relocating party has the burden of showing the move is in the child's best interests.

What to do next

• Write down your child's current routine and who does what
• Collect school, medical and activity records
• Keep communication with the other parent calm and child-focused
• Consider mediation or other dispute resolution before a hearing
• Speak with a lawyer about which law applies and what your realistic options are

Frequently asked questions