Contact Orders
A contact order is a court decision that gives a person the right to have contact with a child even if they are not one of the child’s parents.
Any adult can apply for a contact order. The people who most often apply for a contact order are:
- Grandparents
- A child’s brother or sister
- A former step-parent
- An aunt or uncle
The court may grant a contact order when it considers that the request is made for the good of the child. This is what the law defines as “the best interests of the child”.
If the people who have legal responsibility for the child, such as their parents or legal guardian, agree to you having contact with them, then it is not usually necessary to apply to the court for a contact order. In other words, the contact order is a last resort. It is an option when the people who have legal care of the child do not agree to you having contact with them, and your efforts to reach an agreement have not been successful.
If you and the parents disagree, it is best to try to settle it out of court, amicably. Ask yourself, for example, why the parents refuse to let you have contact with the child or spend time with them. Could you take steps to resolve the conflicts or communication problems?
If, after your efforts to communicate and resolve the problems, you are still prevented from seeing the child, you can apply to the court for a contact order.
The Family Law Act sets out the criteria that the court must consider when making decisions about children and contact orders.
In deciding whether or not to grant you a contact order, the judge will take into account the “best interests of the child”. The factors to be considered are set out in section 50(2) of the Family Law Act. Here are some examples of factors they consider:
- the child’s upbringing, culture and language
- the child’s needs, including the need for stability
- the nature and strength of the relationship that the child has with his or her relatives
- the willingness of each parent to encourage the development and maintenance of a relationship between the child and the other parent
- the history of the care that the child has received
- the child’s point of view and their preferences, according to their age and degree of maturity
Note that, according to this law, the court must consider the importance of supporting a healthy and loving relationship with other adults who play an important role in a child’s life. But this is not the only factor influencing its decision.
Among other things, the court must assess whether the people who have legal responsibility for the child agree to you having contact with them. The court will also want to know their reasons if they do not agree. It will also consider whether it is necessary to make an order.
The court will also consider whether it is possible for you to have contact with the child while they are with only one of their parents. For example, if the parents are separated and only one of them refuses to facilitate contact, you could spend time with the child while they are with the other parent. In this situation, you may not need an order.
For your part, you will have to show the court why it is in the child’s best interests to spend time with you, even without the parents’ consent.
In most cases, it is the parents who decide whether or not their children should have contact with other adults, including other family members. The court may not wish to interfere in the decisions of parents or guardians about a child’s the upbringing.
If you do not get along with the parents, the court may decide that it is not in the child’s best interests to spend time with you. You will then have to prepare to convince the court that it is in the child’s best interest to have a relationship with you.
Contact with the child does not just include visiting rights. It can certainly take the form of visits, but it can also be in the form of telephone calls, video calls, text messages or letters. In fact, it can be done using any means of communication.
If you have to appear before a judge, then the judge will determine what your contact with the child will be. You can suggest different ways you could spend time with the child. The contact order could then specify whether you will spend time with the child at your home, at his or her home or elsewhere, for example in a restaurant.
The order may also forbid you from taking the child outside a specific area without the consent of the person who has legal responsibility for the child
If you want to apply for a contact order, you must file a Notice of Application with the Court of King’s Bench, Family Division. This court is often referred to as “Family Court.” The exact procedure for making your application depends on the region of New Brunswick where the child lives.
If you are in this situation, you may need legal advice. It may be useful to consult a lawyer for help or legal advice before making your application.
Normally, you will not be able to access legal aid for this. Legal aid does not usually represent people applying for contact orders.
If you cannot afford to pay for help or if you want to represent yourself, PLEIS-NB can help you. On the website, you can find self-help guides with step-by-step instructions on court procedure. You can also call the PLEIS-NB family law information line at 1-888-236-2444.
In New Brunswick, anyone can apply for a parenting order.
Instead of giving the right to have contact, a parenting order can give a person legal decision-making responsibility for the child. This is often referred to as having “custody”.
If necessary, the court can modify an existing parenting order to accommodate the terms of a contact order.
As with a contact order, the court determines whether the application for a parenting order is in the best interests of the child.
If you want to apply for a parenting order, you should seek legal advice. In some cases, it is possible to get support from legal aid.