Christine Doucet – June 2016
The legislation in Nova Scotia governing custody, parenting, child support and spousal support has been significantly revamped and modernized. Bill 131, which allows for amendments to the Maintenance and Custody Act to create the Parenting and Support Act was several years in the making and received final approval by the Nova Scotia legislature in December. It is expected to be proclaimed into law this fall. The Department of Justice is in the process of preparing rules and court forms to accord with the new legislation, and is expected to hold workshops and/or information sessions for lawyers to become familiar with the changes.
Many of the changes will have the effect of modernizing language surrounding custody, parenting and support, for example by broadening the definitions of “spouse” and “parent”. The terms “access” and “visiting privileges” are replaced with “parenting time”, “contact time” and “interaction”.
Mobility
Other changes are more substantive. For example, the new legislation will change the way Nova Scotia courts approach mobility cases when a parent wishes to relocate with his or her child or children. It introduces a presumption in favour of certain parents who wish to move.
The new legislation instructs the court to presume that the relocation of the child is in the best interests of the child if the primary caregiver requests the order and any person opposing the relocation is not “substantially involved” in the care of the child, unless the person opposing the relocation can show that the relocation would not be in the best interests of the child. Conversely, it instructs the court to presume that the relocation of the child is not in the best interests of the child if the person requesting the order and any person opposing the relocation have a “substantially shared parenting arrangement”, unless the person seeking to relocate can show that the relocation would be in the best interests of the child.
In layman’s terms, this means that if the other parent does not play an active role in the child’s life, a move is more likely to be permitted. If the parents play approximately equal roles in the child’s life, the move is less likely to be permitted.
For cases that do not fall into those two categories, for example situations where a primary care parent wishes to move with the child or children but the other parent is substantially involved in the care of the child, each parent will have the burden of proving what is in the child’s best interests. This is the approach that the courts are currently required to take and, therefore, does not change the law. There will be no presumption in place for either parent.
The above changes are by no means perfect, as there will inevitably be disagreements about whether the parent opposing the move has been “substantially involved” in the care of the child. The changes also create a presumption that does not exist in cases governed by the federal Divorce Act, which means that cases involving children of divorced or divorcing parents may be treated differently than cases litigated under the new provincial Parenting and Support Act.
From a family lawyer’s perspective, two aspects of the new legislation are particularly useful. The Act defines and encourages the use of parenting plans, and it sets out the steps that can be taken when a parent does not comply with parenting orders.
Parenting Plans
A new section of the Act (section 17A) establishes a framework for the court to create a parenting plan outlining the living arrangements for the child and each parent’s responsibilities to the child. For example, the parenting plan may indicate which parent will be responsible for the child’s medical care, whether the parent may travel with the child, and the manner in which the parents are required to communicate with each other. Many negotiated agreements and court orders already include this type of detail, but some do not. Including such a framework in the governing legislation may serve to increase the use of parenting plans, and reduce the confusion and conflict that often leads to family litigation.
Consequences for Denials of Parenting Time
Another new section of the Act (section 40) sets out the steps that a person can take if he or she is denied parenting time, contact time or interaction contrary to a registered agreement or court order. It also lists a number of remedies that the court can order in cases of such denial, including an order that any of the parties to the application or the child attend counselling, that the applicant have compensatory parenting time, contact time or interaction, or that the party denying parenting time pay a financial penalty to the applicant or to the applicant in trust for the child.
For more information on this or any family law matter, please contact MDW Law.
The following is a link to the changes to the Maintenance and Custody Act: http://nslegislature.ca/legc/bills/62nd_2nd/3rd_read/b131.htm