Divorce & Parenting Court Process in NB

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 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

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.

Trying to reach an agreement

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 like mediation or collaborative law.

Your agreement (also called a domestic contract) can come in the form of a parenting plan or, if you're divorcing, a separation agreement. If you create one yourself, have a lawyer review its terms to ensure it is fair and ironclad. (It's recommended a lawyer draft the agreement for you though it is not required.) Prepare four copies of your agreement.

Starting a case

You must open a case file to get a court order.

Emergency orders

Before you formally start a case, you can file an application to ask the court for an Emergency Intervention Order. This prevents contact between the other parent and your child.

Prepare a cover letter asking for a hearing and an application explaining what you want. 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 that the other parent no longer come near 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.

• Doing Your Own Divorce Guide (uncontested divorce)
• Applying for Custody, Access, and Support Guide

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.

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 will likely get everything they asked for so long as they filed proof of service and required information about their finances, and child-related terms are in the child's best interests.

Going to court

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:

• Asks whether you have a lawyer or will hire one
• Ensures you have financial information on file
• Makes interim orders if requested
• Checks whether the respondent has filed a Response

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.

Preparing for trial

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 or voice of the child report to gather more information on what would be in the child's best interests.

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 arrangements include:

• Parental fitness
• Who has provided most of the child's care
• Whether the parent will encourage a relationship between the child and the other parent
• History of family violence
• The child's age and development
• The child's wishes

Often, the judge gives their decision from the bench. You can appeal the judge's decision if you do not agree with it.

Final orders

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, 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., changing parenting time. But if you need a major change, like a different parenting schedule or relocation, ask the court to modify your order.

Throughout your case

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 customizable parenting calendars, a parenting plan template, 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.

Our professional sources

The following professionals helped us understand New Brunswick family law and may be able to help you, too.

Haller Law
Jack Haller
Moncton, NB

J. Donovan Law Group
Jennifer Donovan
Fredericton, NB