Under Divorce Act, R.S.C. 1985, c. 3, s. 16.1, New Brunswick courts may allocate decision-making responsibility as shared (both parents jointly), sole (one parent only), or divided by subject area (health, education, religion, extracurriculars). Since March 1, 2021, Canada's Divorce Act eliminated the terms "custody" and "access" in favor of "parenting time" and "decision-making responsibility." There is no legal presumption of equal parenting time or shared decision-making responsibility in New Brunswick—courts determine all arrangements based exclusively on the child's best interests under Divorce Act, s. 16(1).
Key Facts: Decision-Making Responsibility in New Brunswick
| Factor | Details |
|---|---|
| Filing Fee | $110 total ($100 petition + $10 clearance certificate) |
| Parenting Application Fee | $75 (without divorce) |
| Residency Requirement | 1 year ordinary residence in New Brunswick |
| Waiting Period | 31 days after judgment (appeal period) |
| Governing Laws | Federal Divorce Act (divorcing) / NB Family Law Act (separating) |
| Decision Areas | Health, education, culture/religion/language, extracurriculars |
| Court | Court of King's Bench, Family Division |
What Is Decision-Making Responsibility Under New Brunswick Law?
Decision-making responsibility is the legal authority to make significant decisions about a child's well-being in four specific areas: health, education, culture and religion (including language and spirituality), and significant extracurricular activities. Under Divorce Act, s. 2(1), this responsibility is distinct from parenting time, which refers to when a child is physically in a parent's care. New Brunswick courts may allocate decision-making responsibility in three ways: shared between both parents, sole to one parent, or divided by subject matter where each parent controls specific decision categories.
When parents share decision-making responsibility, both must consult and agree on major decisions affecting their children. This arrangement requires ongoing communication and cooperation between parents. When one parent has sole decision-making responsibility, that parent makes all significant decisions independently without requiring the other parent's input or consent. In divided arrangements, each parent holds authority over designated subject areas—for example, one parent might control health and education decisions while the other controls religion and extracurricular activities.
Shared Decision-Making Responsibility Explained
Shared decision-making responsibility requires both parents to jointly make significant decisions about their child's health, education, religion, and extracurricular activities. Under Divorce Act, s. 16.4, any person with decision-making responsibility is entitled to request information about the child's well-being from the other parent. New Brunswick courts favor shared arrangements when parents demonstrate they can cooperate effectively, communicate respectfully, and prioritize their child's needs above personal conflicts. According to Justice Canada guidance, shared decision-making works best when parents live in reasonable proximity to each other and maintain a working co-parenting relationship.
Shared decision-making responsibility does not require equal parenting time. A parent with 30% parenting time may still hold equal decision-making authority with the parent who has 70% parenting time. Courts recognize that the ability to make significant decisions about a child's upbringing is separate from the day-to-day caregiving schedule. Under the 2021 Divorce Act amendments, there is no presumption that parenting time should be divided equally—the court allocates parenting time based on what is consistent with the child's best interests.
For shared decision-making responsibility to function properly, New Brunswick courts typically require evidence of the parents' ability to communicate about major decisions affecting the child. If parents cannot reach agreement on a significant decision, either parent may apply to the Court of King's Bench for a determination under NB Family Law Act, s. 52. The court may then allocate that specific decision to one parent or provide direction on how the impasse should be resolved.
Sole Decision-Making Responsibility Explained
Sole decision-making responsibility grants one parent exclusive authority to make all significant decisions about the child's health, education, culture, religion, and extracurricular activities without requiring input from the other parent. New Brunswick courts order sole decision-making responsibility in approximately 35-40% of contested parenting cases, particularly where evidence shows high parental conflict, family violence, coercive control, substance abuse, mental health concerns, or a history of one parent failing to consult the other. Under Divorce Act, s. 16(4), courts must specifically assess whether patterns of coercive and controlling behavior exist when determining decision-making arrangements.
When a court orders sole decision-making responsibility to one parent, the other parent typically retains parenting time rights unless the court determines such contact would not be in the child's best interests. The parent without decision-making responsibility remains entitled under Divorce Act, s. 16.4 to request information about the child's health and education from the parent with decision-making responsibility. This information-sharing requirement ensures both parents can maintain awareness of their child's welfare even when decision authority rests solely with one parent.
New Brunswick courts may also order what practitioners call "parallel parenting" arrangements, where each parent makes day-to-day decisions during their respective parenting time without consulting the other. Parallel parenting differs from sole decision-making responsibility because it applies to routine daily decisions rather than the significant decisions covered by formal decision-making responsibility orders. This approach reduces direct parent-to-parent contact in high-conflict situations while still allowing both parents to remain involved in their child's life.
Divided Decision-Making Responsibility
Divided decision-making responsibility allocates specific decision categories to each parent based on their individual strengths, expertise, or the child's established relationships. For example, a court might order that one parent has responsibility for health and education decisions while the other parent has responsibility for religious upbringing and extracurricular activities. Under Divorce Act, s. 16.1, New Brunswick courts have broad discretion to craft parenting orders that serve the child's best interests, including creative divisions of decision-making authority.
Divided arrangements work best when each parent has demonstrated competence in specific areas or when the child has established patterns with each parent regarding particular activities. A parent who has historically managed the child's medical appointments and school communications might receive decision-making responsibility for health and education, while the parent who has been primary in religious observance and sports coaching might receive those decision categories. Courts consider the child's existing relationships and each parent's track record when dividing decision-making responsibility.
Best Interests of the Child: The Governing Standard
Under Divorce Act, s. 16(1), New Brunswick courts must consider only the best interests of the child when making parenting orders. The court shall give primary consideration to the child's physical, emotional, and psychological safety, security, and well-being above all other factors. There is no presumption favoring any particular arrangement—neither shared parenting nor sole parenting is legally preferred. Each case is determined on its specific facts with the child's welfare as the paramount concern.
Section 16(3) of the Divorce Act lists 15 specific factors courts must consider when determining best interests. These include the child's needs given their age and stage of development; the nature and strength of the child's relationship with each parent and significant persons; each parent's willingness to support the child's relationship with the other parent; the child's views and preferences (considering age and maturity); the child's cultural, linguistic, religious, and spiritual upbringing; plans for the child's care; each parent's ability to communicate and cooperate on child-related matters; any history of care; the child's need for stability; and each parent's ability to care for the child.
Under Divorce Act, s. 16(6), courts shall give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests. The Supreme Court of Canada clarified in Barendregt v. Grebliunas (2022 SCC 22) that this "parenting time factor" must not detract from the child-centric nature of the inquiry. Maximum parenting time is appropriate only when it aligns with the child's best interests—not as a default starting point.
Family Violence and Coercive Control
The 2021 Divorce Act amendments significantly strengthened provisions addressing family violence in parenting determinations. Under Divorce Act, s. 16(3)(j), courts must consider any family violence and its impact on the ability and willingness of the violent person to care for and meet the child's needs, as well as the appropriateness of requiring parties to cooperate on issues affecting the child. Family violence is defined broadly under Divorce Act, s. 2(1) to include physical, sexual, and psychological abuse, harassment, willful deprivation, and coercive and controlling behavior.
When family violence is present, Divorce Act, s. 16(4) requires courts to assess seven additional factors: the nature, seriousness, and frequency of the violence and when it occurred; whether there is a pattern of coercive and controlling behavior; whether violence is directed toward the child or the child is exposed to it; physical, emotional, and psychological harm or risk to the child; any compromise to safety; whether the violence causes fear for safety; and steps taken by the violent person to prevent future violence and improve their caregiving ability.
New Brunswick courts will not order shared decision-making responsibility where evidence establishes family violence or coercive control. Requiring victims to cooperate and communicate with abusers on parenting decisions can perpetuate the abuse dynamic and expose both the victim parent and children to ongoing harm. In such cases, courts typically order sole decision-making responsibility to the non-violent parent, with parenting time for the other parent subject to conditions or supervision where necessary to ensure child safety.
How New Brunswick Courts Allocate Decision-Making Responsibility
New Brunswick's Court of King's Bench, Family Division handles all divorce proceedings and parenting applications. The court process begins with filing either a divorce petition (Form 72A for contested, Form 72B for joint) with the $110 filing fee, or a parenting application under the Family Law Act with the $75 filing fee. For divorcing couples, parenting orders are typically addressed within the divorce proceeding rather than as separate applications.
The court considers evidence from both parents regarding their caregiving history, their relationship with the child, their ability to communicate, and any factors affecting the child's best interests. Courts give significant weight to the status quo—the parenting arrangements that have been working during separation often inform the final order. Parents who have been actively involved in decision-making during the marriage and have demonstrated responsible decision-making are more likely to retain that role post-separation.
When parents cannot agree on decision-making arrangements, the court may order a custody and access assessment (now called a parenting assessment) under NB Family Law Act, s. 55. A qualified professional interviews both parents and the children (if age-appropriate), observes parent-child interactions, and provides the court with recommendations. These assessments typically cost $3,000-$8,000 and take 2-4 months to complete. While courts are not bound by assessor recommendations, they give them significant weight in contested proceedings.
Parenting Time vs. Decision-Making Responsibility
Parenting time and decision-making responsibility are distinct legal concepts that should not be confused. Parenting time refers to periods when a child is in a parent's care, during which that parent makes day-to-day decisions like meal choices, bedtimes, and daily activities. Decision-making responsibility covers only the four categories of significant decisions: health, education, culture/religion/language, and major extracurriculars. A parent can have substantial parenting time without holding decision-making responsibility, and vice versa.
Under current New Brunswick practice, parenting time arrangements fall into three categories based on time allocation. Majority parenting time places the child with one parent for more than 60% of the year (more than 219 days). Shared parenting time places the child with each parent for at least 40% of the year (at least 146 days each). Split parenting time applies when families have multiple children and at least one child resides primarily with each parent. These categories affect child support calculations under the Federal Child Support Guidelines.
The allocation of decision-making responsibility does not need to mirror parenting time percentages. Courts recognize that effective decision-making requires knowledge of the child's needs, ability to implement decisions, and cooperation between parents—factors that may not correlate with time spent providing direct care. A parent with 35% parenting time may have equal or sole decision-making responsibility if they demonstrate superior judgment, communication skills, or subject-matter expertise relevant to major decisions.
Relocation Rules and Decision-Making
Under Divorce Act, s. 16.9, a parent with parenting time or decision-making responsibility who intends to relocate must provide 60 days written notice to any other person with parenting time, decision-making responsibility, or contact rights. The notice must include the expected date of relocation, the new address, and a proposal for how parenting arrangements would be modified. The other parent has 30 days to file an objection with the court.
Relocation cases involving decision-making responsibility raise particular challenges because geographic distance affects the ability of non-relocating parents to participate in significant decisions affecting the child. Courts consider whether technology (video calls, email, shared calendars) can facilitate remote participation in decision-making, and whether the relocating parent's proposed arrangements maintain meaningful involvement for the other parent. In contested relocation cases, the burden of proof depends on existing parenting time allocation under Divorce Act, s. 16.93.
For parents with substantially equal parenting time, the relocating parent bears the burden of showing relocation is in the child's best interests. For parents with majority parenting time, the objecting parent bears the burden of showing relocation is not in the child's best interests. These burden allocations reflect the 2021 Divorce Act amendments' recognition that displacing established parenting arrangements requires justification proportional to the disruption involved.
Modifying Decision-Making Orders
Either parent may apply to vary a decision-making order when there has been a material change in circumstances since the original order was made. Under Divorce Act, s. 17, the court may vary, rescind, or suspend an existing parenting order upon proof that circumstances have changed materially. A change in circumstances must be significant and relate to the factors that informed the original order—temporary inconveniences or ordinary life transitions typically do not qualify.
Common grounds for varying decision-making orders include: a parent's relocation affecting their ability to participate in decisions; deterioration in inter-parental communication making shared decision-making unworkable; one parent's failure to consult the other as required; a child reaching an age where their preferences should carry more weight; or discovery of family violence that was not known when the original order was made. The filing fee for a variation application in New Brunswick is $100.
When seeking to vary decision-making responsibility, courts again apply the best interests of the child standard. The parent seeking variation must demonstrate that the proposed change serves the child's interests better than the existing arrangement. Courts generally prefer stability and continuity in parenting arrangements, so applicants must show that the circumstances genuinely require modification rather than mere parental preference for a different outcome.
Bill C-223: Proposed 2026 Changes
In January 2026, Liberal MP Lisa Hepfner introduced Bill C-223, which proposes significant amendments to the Divorce Act's parenting provisions. The bill aims to strengthen protections against family violence in parenting determinations and clarify that equal parenting time should not be presumed where evidence of abuse, coercive control, or safety concerns exists. The bill received its first reading debate in late January 2026 and awaits further parliamentary action.
If enacted, Bill C-223 would formalize what many family courts already practice: rejecting equal parenting as a default starting point in family violence cases. The bill's proponents argue that explicit statutory language will prevent abusers from using the "maximum parenting time" principle to maintain control over victims through ongoing parenting disputes. Critics raise concerns about evidentiary standards and the potential for unsubstantiated allegations to affect parenting outcomes.
New Brunswick practitioners should monitor Bill C-223's progress, as any amendments would affect how courts in the province determine shared versus sole decision-making responsibility in cases involving family violence allegations. Until any amendments pass, current Divorce Act, s. 16(4) provisions requiring courts to assess family violence factors remain the governing framework.
Step-by-Step: Obtaining a Parenting Order in New Brunswick
To obtain a decision-making responsibility order in New Brunswick, follow these steps:
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Determine the appropriate application: If divorcing, include parenting claims in your divorce petition (Form 72A or 72B). If separating without divorce, file an application under the Family Law Act.
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Meet residency requirements: At least one spouse must have been ordinarily resident in New Brunswick for one year immediately preceding the application.
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Pay filing fees: $110 for divorce ($100 petition + $10 clearance certificate) or $75 for parenting-only applications. Fee waivers are available for recipients of social assistance or Legal Aid.
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Serve the other parent: The respondent has 30 days to respond if served within Canada, or 60 days if served outside Canada.
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Attempt resolution: New Brunswick strongly encourages mediation and alternative dispute resolution before contested hearings.
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Attend case conference: Courts typically schedule a case conference to identify issues, encourage settlement, and set timelines.
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Provide evidence: If unresolved, prepare affidavit evidence and potentially request a parenting assessment.
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Attend hearing: Present your case to a Family Division judge who will apply the best interests standard.
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Receive judgment: The court issues a parenting order specifying parenting time and decision-making responsibility allocation.
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Wait 31 days: The divorce (if applicable) becomes final 31 days after judgment unless both parties sign Form 72L waiving appeal rights.
Frequently Asked Questions
What is the difference between parenting time and decision-making responsibility in New Brunswick?
Parenting time refers to periods when a child is in a parent's physical care, during which that parent makes routine daily decisions. Decision-making responsibility is the legal authority to make significant decisions about health, education, culture/religion, and major extracurriculars. Under the 2021 Divorce Act amendments, these are separate allocations—a parent can have extensive parenting time without decision-making authority, or minimal parenting time with shared decision-making responsibility.
Does New Brunswick law presume equal parenting time or shared decision-making?
No. Under Divorce Act, s. 16(1), New Brunswick courts make all parenting determinations based solely on the child's best interests with no presumption favoring any particular arrangement. The Supreme Court of Canada confirmed in Barendregt v. Grebliunas (2022) that equal parenting time is appropriate only when consistent with the child's best interests—not as a default starting point. Courts assess each family's specific circumstances.
How much does it cost to file for decision-making responsibility in New Brunswick?
Filing for divorce with parenting claims costs $110 total ($100 petition fee plus $10 clearance certificate). Filing for parenting arrangements without divorce costs $75. Fee waivers are available for persons receiving social assistance under the Family Income Security Act or represented by Legal Aid. A Certificate of Divorce costs an additional $7 once the judgment becomes final. As of May 2026—verify current fees with your local clerk.
Can decision-making responsibility be divided between parents?
Yes. Under Divorce Act, s. 16.1, courts may divide decision-making responsibility by subject matter. One parent might receive authority over health and education decisions while the other receives authority over religion and extracurricular activities. Courts craft such arrangements based on each parent's strengths, the child's relationships, and the family's history regarding each decision category.
Will a court order shared decision-making if parents have high conflict?
Unlikely. New Brunswick courts recognize that shared decision-making requires parents to communicate and cooperate effectively. Where evidence shows high parental conflict, family violence, coercive control, or an inability to reach agreements, courts typically order sole or divided decision-making responsibility rather than requiring ongoing joint decision-making that would expose children to conflict. The 2021 Divorce Act specifically requires courts to assess family violence impacts on cooperative arrangements.
How does family violence affect decision-making responsibility orders?
Family violence significantly impacts decision-making allocations. Under Divorce Act, s. 16(4), courts must assess the nature, seriousness, and frequency of violence; patterns of coercive control; exposure or risk to the child; and steps the violent person has taken to change. Courts will not order shared decision-making requiring abuse victims to cooperate with their abusers. In violence cases, courts typically order sole decision-making to the non-violent parent.
Can I modify a decision-making order after it's made?
Yes. Under Divorce Act, s. 17, either parent may apply to vary a parenting order upon proof of a material change in circumstances. Common grounds include relocation affecting decision-making participation, breakdown of inter-parental communication, discovery of previously unknown family violence, or significant changes in the child's needs. The variation application filing fee is $100. Courts apply the best interests standard when considering modifications.
What happens if parents cannot agree on a major decision?
When parents with shared decision-making responsibility cannot agree on a significant decision, either parent may apply to the Court of King's Bench for a determination. The court will hear evidence from both parents and make the decision based on the child's best interests. Repeated inability to reach agreements may constitute grounds to vary the shared arrangement to sole or divided decision-making responsibility.
How do New Brunswick courts consider a child's preferences?
Under Divorce Act, s. 16(3)(e), courts must consider the child's views and preferences, giving appropriate weight based on the child's age and maturity. Older children's preferences typically carry more weight than younger children's. However, a child's preference is one factor among many—courts do not simply defer to children's stated wishes but assess whether those preferences align with their overall best interests.
Do I need a lawyer to get a decision-making order in New Brunswick?
No, but legal representation is strongly recommended for contested matters. Self-represented litigants may use Family Law NB resources and court forms available through the Court of King's Bench website. However, parenting cases involving family violence, complex assets, or significant disputes benefit from legal expertise. Legal Aid New Brunswick provides representation to qualifying low-income applicants. Initial lawyer consultations typically cost $150-$300.