Parenting Issues

Parenting Orders

When parents decide to separate and/or divorce, they may have difficulty deciding a number of important issues relating to the care and upbringing of their child. They may need the Court’s assistance in deciding these issues.

The Court can make parenting orders that address the following issues:

  • Where will the child live and go to school?
  • How much time will the child live with each parent?
  • What will the family do for special events such as Christmas, birthdays, Easter, etc?
  • How will the family make decisions about the child’s health, education, religion, or extracurricular activities?
  • If a child lives primarily with one parent
  • When is the other parent entitled to spend time with a child and under what conditions?
  • What information about the child is a parent entitled to?

Contact Orders

A court can, in certain circumstances, make a contact order providing for contact between a child and a person other than one of the parents, such as a grandparent or someone else important to the child.

Divorce Act and the Children’s Law Act

The Court can make parenting orders and contact orders under the federal Divorce Act, where the parties to the proceeding are spouses or former spouses. The Court can also make parenting orders under the provincial Children’s Law Act.

Do we have to go to Court to Decide Parenting Issues?

You do not need to go to Court to decide parenting issues. It is strongly recommended that parents try to resolve these issues outside of the Court as nobody knows their child as well as they do. In fact, legislation may specifically impose a duty on the parties to attempt to resolve the dispute outside of the Court (see, for example, s. 7.3 of the Divorce Act).

Parenting issues can be decided between the parents or guardians of the child, if the parties agree. It is a very good idea to put any parenting arrangement you come to into writing (such as a separation agreement) and have it signed by both parties in the presence of an official witness. You can then file a separation agreement with the Court so that it becomes enforceable as an Order of the Court (see s. 65(5) of the Family Law Act).

How can Family Justice Service help?

If parents cannot reach an agreement themselves but wish to remain out of Court, they may want to consider contacting Family Justice Services (“FJS”). FJS can, through mediation, assist parents in reaching an agreement in relation to parenting and child support. They can also assist you in putting the agreement into writing.

There are two ways to get assistance from FJS. Parents can apply directly to FJS for service if they both consent to the process. Alternatively, if one of the parents files an Originating Application with the Court that raises a parenting issue, the Court will automatically forward the parties to FJS to see if it can assist the parties in coming to a resolution.

FJS will assess your needs and offer parent information programs, counselling (when deemed appropriate), and dispute resolution options/mediation, free of charge. Attendance at the Parent Information Sessions is mandatory and parties are expected to take part in mediation.

FJS does not provide legal advice and it is recommended that you obtain legal advice even if you can reach an agreement.

If parents are still unable to come to a decision, the issue may have to be resolved in Court.

Which Court Will Decide My Parenting Application?

Only the Supreme Court can deal with applications to make or vary parenting orders issued as part of, or after, a divorce. If your application for a parenting order is part of an application for a divorce you should apply to the Family Division of the Supreme Court if you are in one of the judicial areas or the expanded service area described here. Otherwise, you should apply to the General Division of the Supreme Court.

If you are applying for a parenting order under the Children’s Law Act, you may be able to apply to the Supreme Court or the Provincial Court, depending upon your circumstances:

  • If you live in a “judicial area” where the Supreme Court of Newfoundland and Labrador Family Division operates exclusively (see the description here), you must file your application with that Court.
  • If you live in an “expanded service area” (see the description here), you have the option of filing your application with the Supreme Court of Newfoundland and Labrador Family Division or with the Provincial Court.
  • In all other areas of the Province (including Labrador), your application may be filed in either the Provincial Court or the General Division of the Supreme Court.

It is strongly recommended to speak with a lawyer if you are uncertain which Court should be handling your case.

Filing documents in the wrong Court can lead to significant delays.

Who Can Apply for a Parenting order?

Parents are not the only ones who can apply for a parenting order. Under the Divorce Act, the following persons may apply for a parenting order:

  • a spouse; or
  • a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Under the Children’s Law Act, the following persons may apply for a parenting order:

  • the mother and the father of the child;
  • a person who has demonstrated a settled intention to treat the child as a child of his or her family;
  • a grandparent of the child; or
  • a person who had the actual care and upbringing of the child immediately before the application.

If a person has questions about making application to the Court for a parenting order, they should consult with a lawyer.

Note that, depending on the circumstances, a person may wish to seek a contact order instead of a parenting order, as discussed above.

What factors will the Court consider in making a Parenting Order?

When the Court is deciding what parenting order to make, the overriding consideration is “the best interests of the child”. This is the test under both the Divorce Act and the Children’s Law Act. Those statutes both set out a list of factors the Court should consider in determining the best interests of the child.

Under the Divorce Act, in order to decide what is in the best interests of the child, courts must consider all of the circumstances, including those set out in the list of factors in section 16(3). It is a long list but other factors may be relevant, depending upon the case. The factors include:

  • the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  • each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  • the history of care of the child;
  • the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • any plans for the child’s care;
  • the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  • the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  • any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  • any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The Children’s Law Act includes a similar list of factors to consider at section 31.

What if there is a parenting order in place and I want to move away?

The Divorce Act includes a framework to guide divorced or divorcing parents, family justice professionals and courts in situations when a parent plans

  • to move their child or
  • to move away from their child

There are rules about:

  • the new steps to follow when a parent plans to move
  • how a court will decide whether a child can or cannot relocate.

These rules are meant to help parents come to agreements about relocation and avoid going to court where possible.

There is more information on this topic available on Justice Canada’s website.

For families with a parenting order made under the Children’s Law Act, the other parent must agree with the move before the parent with custody can move away with a child. It is strongly recommended that this permission be provided in writing. This may already be addressed in the parenting order or parenting agreement, if these documents are in place.

If the parents cannot agree, the parent with custody can apply to Court for permission to move with the child/ren, or the parent without custody can apply for a non-removal order.

Some things the judge may consider include:

  • The best interests of the child;
  • The desirability of maximizing contact;
  • The child/ren’s views;
  • The disruption to the child/ren’s life
  • A parent should always consult with a lawyer before moving away to discuss their legal rights and responsibilities.