Parenting and the Law

Responsibilities are what the law says you must do.

A parent is a mother or a father. However, the term “parent” may also include another person who stands in the place of a parent to the child. When a child is legally adopted, the adoptive parents become the child’s legal parents. Adoptive parents have the same rights and obligations as birth parents.

By law, parents are expected to make parenting arrangements based on the best interests of the child. This means that they must make arrangements that:

• Prioritizes the child’s safety, security, and well-being; and
• Supports the child’s needs based on the child’s age and stage of development.

Parents who are separating or who have never lived together must decide on parenting roles. In the past, this was called “custody and access.” Now, the law refers to parenting time and decision-making responsibility. The new law prioritizes the best interests of the child and removes any suggestion that children are property.

Parenting time is the time a child spends in the care of a parent or someone who acts as a parent. Childcare and schooling do not impact parenting time. If a child needs childcare during a parent’s time with the child, it is still considered parenting time with that parent. Usually, parents with parenting time can let the children visit grandparents, family members, or anyone else who has an important relationship with the child.

If you have parenting time, you also have the right to ongoing information about the child’s education, health, and well-being, unless a court orders otherwise.

Each person with parenting time may make day-to-day decisions about a child when the child is in their care, unless a court orders otherwise. This means that minor decisions about daily activities are made by the parent who has parenting time with the child on that day.

Decision-making responsibility is the responsibility to make significant decisions for a child’s well-being. This includes, but is not limited to, the child’s:
• Health
• Education
• Culture
• Language and spirituality
• Significant extra-curricular activities

Parents may have similar or different decision-making responsibilities. For example, you may be responsible for most decision-making, while both parents may be responsible for medical decisions. Or you and the other parent may share all decision-making responsibility equally.

The law does not assume that parents will have the same roles.

Unless otherwise ordered by a court, the parents of a child are joint guardians of the child. This means that they both have parenting time and decision-making responsibility. It does not mean that the parents will spend the same amount of time with the child. The law does not assume equal parenting time is best for the child.

Having equal parenting time does not automatically mean that parents have equal decision-making responsibilities. Also, parents could have equal decision-making responsibilities, but not have equal parenting time.

If a parent is not involved in the child’s life, and never has been, the parent raising the child has de facto sole decision-making power. De facto means without legal paperwork.

In most cases, parents must financially support their children until they turn 18 and sometimes longer. This is true whether they were married, lived together, or never lived together. Child support is the financial duty you have to your children. Parents cannot ignore or negotiate away this duty.

Generally, parents make child support agreements or ask for a child support court order when they separate. But child support agreements and child support court orders can be made at any time.

The Federal Child Support Guidelines (the “Guidelines”) and other rules are used to decide how much child support is paid, when payments are made, and how long child support must be paid for.

The Guidelines include tables that show the basic amount of child support owing. Child support is calculated based on:

• The income(s) of the paying parent(s), and
• The number of dependent children, and
• Parenting time, and
• The province or territory where the paying parent(s) live.

The Guidelines should be used to make any out-of-court child support agreement. If you go to court, the Judge will use the Guidelines unless there are special circumstances.

A Child Support Guidelines Officer can give you information about the amount of child support your child may be entitled to under the Federal Child Support Guidelines. The Officer can also assist you to apply for child support, or to change an existing child support order or agreement. Call 902-368-6220.

Sometimes, the paying parent cannot afford child support because of specific circumstances. In those cases, the parent may ask the court to lower the amount of child support. Doing this is called “claiming undue hardship.”

The three allowable reasons for undue hardship are:

• An unusually high debt load from the marriage, and
• Unusually high costs to be with your children, and
• Legal obligations to financially support other people.

If you are the paying parent and you have a legitimate reason for not being able to pay, such as losing your job, it is important that you apply for a variation of your child support order. Ask a lawyer for advice.

You do not have to go to court to settle parenting disputes. Going to court should be the last resort for parenting disputes. What the Judge orders may not be what you prefer, and a conflict between you and the other parent may get worse. The law says that you have a responsibility to try to resolve your dispute outside of court. There are exceptions for cases where there is family violence.

Parents may agree on any parenting agreement that works for their family. This means co-parents could share equal parenting time and decision-making responsibility. It also means that one parent could have more parenting time or decision-making responsibility if that is better for the child.

Whatever the parents decide, it is a good idea to have the parenting agreement written down, signed, dated and witnessed. This ensures the agreement is clear to everyone involved.

It is always a good idea to get legal advice before signing a document. If possible, it is best to have your agreement drafted by a lawyer and notarized. This ensures the agreement is correct and reflects the law. However, a lawyer’s involvement is not necessary for making a parenting plan.

If you do not have a lawyer, the Lawyer Referral Service may be helpful. The Lawyer Referral Service is administered by Community Legal Information. You may access up to 45 minutes of consultation with a lawyer for $25 + tax.  Call 902-892-0853 or toll-free 1-800-240-9798.

Coming to an agreement can be difficult. Dispute Resolution may help you come to an agreement with the other parent.

Types of Dispute Resolution include:

• Negotiation is simply talking to the other person and trying to come to an agreement. For example, you may both agree that the education of your children is the most important financial priority, or that you want as little disruption to your children’s lives as possible. Some people can resolve a lot on their own.

• Mediation is when you, your ex, and a mediator sit down together to resolve disagreements. The mediator may meet with each of you separately first to learn more about the conflict. The mediator will then meet with you and your ex together and give each of you the opportunity to speak and to listen. The mediator is neutral and will help you to speak to one another in a positive way. One of the goals of mediation is to create a better way for you and your ex to communicate in the future.

• Collaborative Practice involves you, your spouse, your collaborative lawyers, and sometimes other support professionals, like a financial or mental health professional. The group of you must agree to resolve the issues without going to court. The process is based on mutual respect and the best interests of the family.

*Negotiation and mediation may not be appropriate if there is a power imbalance or violence in the relationship.

Going to court is generally very stressful, and that stress has an impact on children. The court sees mediation as better for the child than going to court. For this reason, you are encouraged to see a mediator before taking legal action. You can do Child-Focused Family Mediation for free, or you can hire a private mediator.

Child-Focused Family Mediation is a free mediation service that helps parents make an agreement on parenting time and decision-making responsibility. Call 902-368-6928.

If you can’t resolve issues outside of court, you can ask the court to get involved. Judges can only make decisions about certain types of family issues. Judges can make decisions about:

• Parenting time and/or decision-making responsibility
• Child support
• Spousal support
• Division of assets (including money and property)

In PEI, when you go to family court, there are certain steps you can expect. You can generally expect that:

1. Your court proceeding will start with paperwork.
2. After the paperwork, you will attend a conference with the other party and a judge to try and resolve the issues.
3. If the conference doesn’t resolve the issues, the court may schedule a hearing.
4. If the hearing doesn’t resolve the issues, the judge may send the matter to trial. Before the trial is scheduled, you will have another conference with a judge to try and resolve the issues.
5. If the conference doesn’t resolve the issues, your matter will go to trial.

The legal process will be different if you are married or unmarried spouses.