How Do New Brunswick Courts Decide Parenting Time? The Best Interests Test

When parents separate in New Brunswick, one of the first and hardest questions is where the children will spend their time and who will make the big decisions. Many parents worry that a judge will simply split time down the middle, or favour one parent. Neither is how the test works.

This article explains in plain language how the Court of King's Bench, Family Division, approaches parenting time and decision-making responsibility, who can ask for an order, and what the court looks at. It is general information, not advice on your situation.

This article covers the law of New Brunswick.

The only question: what is best for the child

Under the Family Law Act, when the Court makes a parenting order or a contact order, it takes into consideration only the best interests of the child. The Divorce Act says the same for divorcing spouses. That means what either parent wants, or thinks is fair to them, is not the test.

Within that test, the child's physical, emotional and psychological safety gets primary consideration under both laws. The Divorce Act also lists family violence and its impact as one of the factors the court considers.

The old words "custody" and "access" have been replaced. Decision-making responsibility is responsibility for significant decisions about a child's well-being, such as 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 a person standing in a parent's place.

Is 50/50 the starting point?

Not exactly. Under the Family Law Act, unless parents have agreed otherwise in writing or the Court has ordered otherwise, where a child has more than one parent, the parents share parenting time and decision-making responsibility. Think of that as a default for the period before an agreement or order exists. It is not a rule that the schedule must be equal, because the best-interests test decides the actual allocation.

Both statutes also include what is often called the maximum contact principle: a child should have as much time with each parent as is consistent with the child's best interests. It is a guide, not a guaranteed 50/50 split.

Under the Divorce Act, the person who has the child during their parenting time has exclusive authority to make day-to-day decisions affecting the child during that time, unless the court orders otherwise. Decision-making responsibility for bigger issues may be given to one spouse, both spouses or others.

Which law applies, and who can apply

Under the Family Law Act, the Court may make a parenting order on the application of a parent or a person standing in a parent's place. The Family Division is the court that handles divorce, Family Law Act matters such as parenting and support, and related family proceedings.

The New Brunswick court can make or vary a parenting or contact order if the child is habitually resident in New Brunswick when the application begins. It may also have jurisdiction where the child is present in the province and would likely suffer serious harm otherwise.

How long an order lasts and what the court expects first

A parenting order can be for a definite period, for an indefinite period, or until a specified event. Children's needs change as they grow, so it is worth asking a lawyer how an order can be reviewed or changed later.

Parties to a Divorce Act proceeding 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. Whether a process like mediation suits your situation, particularly where there are safety concerns, is worth discussing with a lawyer.

• The court looks at the child, not at which parent was to blame for the separation.
• Safety is the first consideration, and family violence is a listed factor.
• A written agreement can set a different arrangement from the default.
• The result depends on the facts of your family.

What to do next

• Write down your child's current routine: school, health care, activities and who does what.
• Gather any existing written agreements or court orders.
• Note any safety concerns and keep records of them.
• Think about which arrangements truly work for your child, not only for you.
• Consider whether a family dispute resolution process could help you reach an agreement.
• Speak to a New Brunswick family lawyer before signing an agreement or filing court forms.

Frequently asked questions