Leave is the court’s permission to make the application.
Grandparents applying for contact time or interaction under the Parenting and Support Act do not need to ask for leave.
Grandparents applying for contact under the Divorce Act must ask for leave.
Grandparents must always ask for the court's permission (leave) when applying for decision-making responsibility of their grandchildren under the Parenting and Support Act or the Divorce Act.
When you ask for leave, you will have to explain to the court why you are making the application, why you are asking to have decision-making responsibility of your grandchildren, what connection you have (what role you play or have played in your grandchildren’s lives), and why you should be given leave to make your application. A judge will decide whether or not to grant you leave, based on the facts of your case. If you are given leave, you will then address the main application for decision-making responsibility of your grandchildren and any other issues such as parenting time for other important people in the child’s life, and child support.
Parents are able to consent (agree) to an order or agreement to give decision-making responsibility of their child to a grandparent(s). Parents are also able to consent to an order for contact, or interaction with their child. When parents do not agree to give a grandparent decision-making responsibility, contact time or interaction with a child, a judge will decide.
A judge’s decision must be based only on the best interests of the child. Decisions like this are complicated and you should have legal advice to help you decide how to make your application to the court, and to understand what is important to a judge hearing your case.
To decide what is in the child’s best interests a judge will think about things like:
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the child’s needs
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the parents’ or guardians’ ability to care for the child
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how the parents or guardians care for the child
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the plan proposed for care of the child
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the child’s cultural, linguistic, religious and spiritual heritage
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what the child wants, if appropriate
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the relationship between the child and their parents or guardian
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the relationship between the child and their grandparent(s)
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how well the adults in the child’s life cooperate and communicate with each other
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whether there is family violence and its effects
Click here for more information about the best interest considerations under the Parenting and Support Act, and Divorce Act.
In cases about contact or interaction with grandparents a judge will also think about:
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whether the child’s parents or guardians are willing to support contact or interactions
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whether an order for contact or interactions is needed to allow the child to see their grandparent(s).
A grandparent can make an application on their own, or both grandparents can apply together, if they both want to visit with or help care for the child or children.
No. Grandparents who are seeking decision-making responsibility have to apply for leave and for decision-making, even if the parent of the grandchild is under 19.
If the children do not live in Nova Scotia, you will have to contact the court nearest to where they are living to find out how to make an application there. The laws in other provinces may be different than the laws in Nova Scotia.
You can start your application with the help of a lawyer. This can be a lawyer that you hire privately, or one provided to you through Legal Aid, if you qualify. You can visit Legal Aid’s website for more information.
You can also start a court application without a lawyer.
If you do not have a lawyer, you can start most court applications yourself by contacting the appropriate court, and asking what processes they have for starting an application. The Supreme Court (Family Division) in your area will have an intake process, where you can get help from a court officer to start your application.
Many forms for starting applications are available online, as well. You should get advice from a lawyer or speak with court staff to make sure you are filing the right documents for your case. You will have to file several documents to start an application. There is also a court filing fee. The fee may be waived if you are eligible – click here for more information.
Grandparents must first get the court’s permission to apply for decision-making responsibility of their grandchildren. This is called applying for leave, and is done at the same time as the rest of your application, but has to be decided first. If you are not given leave, then the rest of your application for decision-making responsibility cannot go ahead. If leave is granted, then your application for decision-making responsibility will go through the court process.
A decision about dividing a child’s time with multiple caregivers is complicated and you should have legal advice to help you decide how to present your case to the court, and to understand what things a court will look at when deciding what is best for your grandchild.
Yes, you can start your own application for decision-making responsibility, contact or interaction with your grandchildren. Depending on your situation, you may also apply to be added as a third party to the parents’ ongoing court matter, or ask the court to have your case be heard at the same time as another case about the same children. For example, if the parents are involved with a child protection matter in court, you may apply to be made a party to that matter, so that you become involved in that process. You should speak to a lawyer for advice if this is your situation as these cases can become complicated.
You can apply to change, or ‘vary,’ your court order if there has been a material change in circumstances.
Generally, the same process applies for changing an order as for getting an order in the first place, except that you have to show that the material change in circumstances is the reason for your application. There may be other things to consider too. You should get legal advice.
There are different ways to get, or change, a court order.
You may wish to negotiate an agreement with the parents and have the terms of the agreement written down to make sure everyone is clear on the parenting arrangements.
The court in your area may offer services to help parties negotiate an agreement. For example, by going to conciliation and having a trained court officer help the parties to reach an agreement and to prepare the order to confirm the agreement.
You may wish to hire a lawyer to help you negotiate and prepare the order.
You may also prepare the order yourselves if you feel confident that you can do this properly. Preparing court orders properly is not easy so you should get advice from a lawyer or have a lawyer review your draft documents to make sure that they are prepared properly.
If you have an agreement or court order prepared, on your own or with a lawyer, you may wish to have it registered with the court. During the registration process a judge will review the terms of the agreement or court order, and if approved, it will become an enforceable court order.
There are many legal terms used when talking about the parenting arrangements for a child. Many of these terms are summarized in a glossary found here.
There are no specific rules around how much time a child should spend with each parent or their grandparents – every situation is different, and every child is different. Remember, all decisions are made based on what is in a child’s best interest. Click here for an explanation of best interests.
It is not unusual for a child to refuse to go to the other parent's home or to a grandparent’s home. Many children find these transitions difficult and may refuse to go, or if they go, may act out for a period of time after the transition.
Some suggestions to make the transition go more smoothly are:
- Don't misinterpret the child's refusal to go to the other parent's or grandparent’s home as meaning there is something wrong going on at the other parent's or grandparent’s home.
- Don't misinterpret the child's refusal to transition to your home as the child not loving you. Even kids with a great relationship with a parent or grandparent may sometimes refuse to transition into their care.
- Don't misinterpret the child's refusal to go to your home to mean that the other parent or grandparent has been discouraging them from going with you. A refusal to transition into your care does not necessarily mean that the other person is trying to discourage the child's relationship with you.
- Be positive with the child about the time they are going to spend with the other parent or grandparent.
- Prepare the child for the transition by giving them age‑appropriate reminders (‘tomorrow you will see your grandparents’; ‘your mother will be here in ten minutes to pick you up’).
- Make sure that the child is not engaged in a fun activity (like a video game or TV show) when it is time to transition into the other parent's or grandparent’s care.
- Engage the child in the transition process. For example, get them to help pack their overnight bag, or have them call the other parent or grandparent to let them know you are on your way.
- Allow the child to bring their favourite comfort items back and forth with them between houses (like their favourite blanket, stuffed toy, or video game)
- Make sure that the transition times are as friendly and comfortable as possible. For example, although it may be a convenient time to discuss issues in relation to the child, if there is any chance the discussion will become uncomfortable or turn into a disagreement, hold off on the discussion for a time when the child is not present.
- Make sure that the child has everything they will need for their time with the other parent or grandparent so that there are no arguments during the transition time (like homework or sports equipment).
Children may not want to go with the other party because they are worried about the person they are leaving. Sometimes the transition is more difficult and traumatic for the parent or grandparent than it is for the child. Let the child know that you will be fine without them in your care. Be careful that you aren’t giving them any non‑verbal cues that you do not want them to go. Kids can understand body language!
In some cases, children, parents and grandparents may need the help of a professional, like a social worker or therapist, to deal with issues around transition or anxiety. Some family resource centres may also be able to help or may have helpful programs that you may want to take.
If you are looking to start a court application about the parenting arrangements for your grandchild on an urgent or emergency basis, you can ask court staff about this process. You should also speak with a lawyer for advice on whether or not your application may be considered urgent or an emergency by the court.
An ‘emergency’ application may be filed where there is a likelihood of danger to those involved, either one of the parties or a child. For example, if there is a risk of violence or immediate harm, or the child is on the way to the airport and may be taken out of the country, this may be considered an ‘emergency.’ A judge will decide whether your situation will be treated as an emergency. How these decisions are made may happen differently depending on the court you are dealing with and the rules that they go by. If you have questions, ask a court officer for more information about this process.
An ‘urgent’ application may be filed when your situation is not an ‘emergency’, but perhaps could be considered time-sensitive, or urgent because of special circumstances. A judge, or a court officer, will decide whether your situation will be treated on an urgent basis, and whether or not your matter will be dealt with quickly.
Even though the situation may be urgent or an emergency, grandparents must still ask for leave of the court when applying for decision-making responsibility of their grandchildren. This means that you have to get the court's permission to go forward with your application. You ask for leave at the same time that you make your application for decision-making responsibility.