How Custody Is Decided in Nova Scotia: Best Interests of the Child

When parents separate, the biggest worry is usually the children. Many parents ask who gets custody, as though a judge picks a winner. In practice, the question a Nova Scotia court asks is different: what arrangement is best for the child.

This article walks through how that decision is made, the factors a court looks at under the Divorce Act, and what you can do to prepare. Every family is different, so treat this as general information and not a prediction.

This article covers the law of Nova Scotia.

Where parenting decisions are made

Divorces in Nova Scotia are heard in the Supreme Court of Nova Scotia (Family Division). Since January 1, 2022, family law matters in the province are handled under Rule 59 of the Civil Procedure Rules. The Division hears parenting arrangements, including decision-making responsibility and parenting time, as well as child support, division of matrimonial assets and debts, and divorce.

Older guides describe a separate Family Court that did not deal with divorces. Those guides predate the unified model, so check current court information if you are unsure where your file belongs.

The best interests test

In making parenting or contact orders under the Divorce Act, the court considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being.

The Divorce Act also sets out who may apply. A person who is not a spouse, such as a grandparent, needs leave of the court to apply for a contact order or a parenting order, unless leave was already obtained under s. 16.1. How provincial family laws apply to your situation depends on the facts, so it is worth confirming with a lawyer. In every case, the focus stays on the child.

The factors a judge weighs

The Divorce Act lists factors a court considers when deciding what is in a child's best interests. They include:

• The child's needs, including stability
• The child's relationships with each parent, siblings and grandparents
• Each spouse's willingness to support the child's relationship with the other
• The history of care of the child
• The child's views and preferences
• The child's cultural, linguistic, religious and spiritual upbringing, including Indigenous heritage
• Each person's plans for the child's care and ability to meet the child's needs
• Each person's ability to communicate and cooperate
• Family violence and its impact, and any relevant civil or criminal proceedings or orders

The court also applies the principle that a child should have as much time with each spouse as is consistent with the child's best interests. That is not a guarantee of equal time. It is a starting principle that always yields to what is best for the child.

Other routes besides a trial

Most parents do not need a judge to choose for them. The Family Division offers conciliation, where a court officer meets the parties to identify issues and explore settlement, mediation with a neutral mediator who cannot make orders, and voluntary judge-led settlement conferences. Mediation referrals by the court generally need an active application.

If you file a court application involving children, the Parent Information Program is mandatory, though parents can attend voluntarily too.

If safety is an immediate concern, Nova Scotia has emergency protection orders under the Domestic Violence Intervention Act. They are applied for by telephone, and a victim may apply between 9:00 am and 9:00 pm, while designated persons such as peace officers may apply at any time.

What to do next

• Write a simple history of who has cared for the children day to day
• Keep communication with the other parent calm and factual
• Think about how you can support the child's relationship with the other parent
• Note the child's schooling, health, routines and activities
• Keep records of any safety concerns, and seek help if needed
• Speak with a Nova Scotia family lawyer about your options before filing

Nova Scotia Legal Aid covers family matters under the Parenting and Support Act and Divorce Act, and eligibility depends on your finances.

Frequently asked questions