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By default, parents have equal rights to make decisions for and spend time with their children.
Parents who want to change this — or clarify how they’ll share the rights — can go to Court. If they reach an agreement, they’ll only need the court to sign off by consent. Otherwise, they’ll end up in trial.
Keep in mind that some nondivorcing parents who reach an agreement choose not to go to court. While this can save time and money, getting a court order allows the Court to enforce your agreement. Plus, a Court Order makes international travel with your child easier; Customs Officers often ask to see a parenting order.
The Family Division of the Court of King’s Bench handles divorce, parenting time and decision-making responsibility cases in New Brunswick.
Expect to encounter some or all of the following when going to Family Court.
Preparation can have a large impact on the outcome of your case.
A lawyer can help you understand the laws that apply to your case and figure out the best course of action to take. If you cannot afford a lawyer, seek help through New Brunswick’s Legal Aid Services Commission.
Research New Brunswick’s family laws: Canada’s Divorce Act and New Brunswick’s Family Law Act.
Read up on child support and the best evidence to support your parenting case.
Try to agree before you even open a case. If that’s not successful, you’ll negotiate throughout the case with the goal of avoiding trial.
As soon as you have agreed and opened a case, you can skip to the final orders stage below.
Parents can negotiate an agreement on their own or through an alternative dispute resolution (ADR) method. (Mediator or Collaborative Law)
Your agreement (also called a domestic contract) can come in the form of a separation agreement. It is best if an experienced solicitor drafts four copies of this contract.
You must open a case file to get a court order.
Emergency orders
Before you formally start a case, you can file an emergency application to ask the court for an order preventing contact between the other parent and your child.(EIO) or an application in Family Court,
Prepare a cover letter asking for a hearing, an application explaining what you want, and an affidavit explaining what happened (e.g. that the parent took the child). You don’t have to serve (notify) the other parent.
If the Court agrees your situation qualifies, you will have a teleconference with the judge within 48 hours. The Adjudicator may issue an emergency order. Typically, the order will require the other parent to vacate the residence and not see the child.
Eventually, there will be a second hearing, which both parents can attend. The judge may extend the emergency order, end it, or give you a new order.
Standard orders
There are online guides to help parents through the process of filing their case.
You can find court forms online, get them from the courthouse or ask your lawyer to prepare them.
Since it can take a while to get to trial, consider requesting interim orders in addition to final orders. They will give you arrangements for parenting and other matters while your case is in progress such as child support.
Take your forms to the court location closest to where your child primarily resides. You’ll pay a $75 filing fee if you’re applying for parenting time and decision-making responsibility. If you’re filing for divorce, the fee is $110. Ask for a fee waiver if you cannot afford it.
If you did not file a joint petition, an adult other than yourself must give copies of your documents to the other parent. The server must fill out an Affidavit of Service, which you’ll give to the court as proof of service.
The other parent, called the Respondent, has 30 days to respond. (Again, this does not apply if you filed a joint petition.) If they do not respond, the Applicant gets everything they asked for so long as they filed proof of service and child-related terms are in the child’s best interests.
First court appearance
After filing, you (or your lawyer if you have one) will receive Notice of your first court appearance. The appearance typically happens six to eight weeks after filing.
In Moncton and Saint John, you’ll meet with a Case Management Master. In Fredericton, Miramichi and Woodstock, you’ll meet with a judge.
The judge or Master:
If the judge or master determines your case is ready for trial, they will schedule a trial.
If the case is not ready for trial, they may schedule another court appearance.
In the months before trial, it’s common to appear for at least one court conference to check in with the judge, discuss the possibility of settlement, and prepare for trial.
The Court may order a custody evaluation to gather more information on what would be in the child’s best interests. (Voice of the Child Report)
Trial
At trial, a judge makes decisions about all issues that are still in dispute.
In Moncton and Saint John, due to the high volume of cases, it may take a year or more for the trial to begin. Elsewhere, a trial may begin within six months of starting a case.
Parents or their lawyers make statements, question witnesses and present evidence to support their cases. The judge makes a decision based on what they hear and read.
Some factors the judge considers when deciding parenting time include:
Often, the judge gives their decision from the bench. You can appeal the judge’s decision if you do not agree with it.
You’ll receive a final order in the mail. Divorcing parents get two final orders: A divorce judgment, plus a Corollary Relief Order (which details parenting arrangements and child support and property).
If you asked the court for an order based on an agreement, the order will incorporate the terms of your agreement, as long as they were in your child’s best interest.
With time, your child’s needs will change. Parents can agree to deviate slightly from their order without involving the court, e.g. by changing parent time or a relocation. But if you need a major change, like a different parenting schedule, ask the court to modify your order.
During the court process, you may need to create a parenting plan, draft parenting time schedules, keep a log of interactions with the other parent and more.
The Custody X Change online app enables you to do all of this in one place.
With a parenting plan template, customizable parenting calendars, a digital journal and more, Custody X Change makes sure you’re prepared for whatever arises in your journey to parenting in two households.
Take advantage of our technology to stay on top of all the moving parts of your case.
About Jack Haller
