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 agrees that the request is for the good of the child. This is what the law defines as “the best interests of the child”.
If a child’s parents or legal guardians agree that you should have 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, 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 unable to see the child, you can apply to the court for a contact order.
The Family Law Act explains what 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 consider the “best interests of the child”. The factors are set out in section 50(2) of the Family Law Act. Here are some examples what 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
The Best Interests of the Child
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 ask 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 let you see them, you might be able to 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 their children should have contact with other adults, including other family members. The court may not wish to interfere in parents’ or guardians’ decisions about a child’s the upbringing.
If you do not get along with the child’s 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 mean visiting rights. It can certainly take the form of visits, but it can also be telephone calls, video calls, text messages or letters. In fact, contact 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 the child’s 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 child’s parent or guardian.
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 want to apply for a contact order, you may need legal advice. It may be useful to consult a lawyer for help or for 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 has resources that can help you. We have self-help guides with step-by-step instructions on court procedures. 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 sometimes referred to as having “custody”.
As with a contact order, the court determines whether the application for a parenting order is in the best interests of the child.
If necessary, the court can also modify an existing parenting order to respect the terms of a contact order. For example, a child’s parents may have separated. Under a parenting order they have a schedule for the child to spend time in each of their households. The court may consider modifying that schedule to accommodate your time with the child if you apply for a contact order.
If you want to apply for a parenting order, you should seek legal advice.