What constitutes common law?

A common law relationship is simply the act of living together in a marriage-like relationship without actually being legally married. It does not require any kind of legal process to create a common law union. The definition of common law partnership also differs depending on the laws applied. For example, the Canada Pension Plan states that two people are in a common law relationship after a year of cohabitation. The Parenting and Support Act, on the other hand, requires two years of cohabitation before a relationship can be described as common law.

As family lawyers in Nova Scotia, we are often approached about denial of visitation rights and parental gatekeeping. Upon separation, parents often will work together to create a parenting plan that suits the needs of their children. When parents cannot agree, they look to the Court for assistance and a judge can court order a parenting plan each party is required to follow. But what happens when one parent begins withholding parenting time?

What to Do if Parenting Time is Being Denied

If this occurs, and the parties do not have a court order, they may choose to apply to the Supreme Court (Family Division) for relief. One such option is through a Notice of Motion for Interim Relief. More information about this can be found in our Interim Motions blog.

Violation of Court-ordered Parenting Time

But what do you do if you have a court order that already outlines parenting arrangements? If your court order was issued pursuant to the Parenting and Support Act, there are a number of different options available to you. This can include a “Denial of Time” application pursuant to paragraph 40(1) of the Parenting and Support Act. This asks the Court to find that a parent has been wrongfully denied parenting time, and offers a number of remedies to resolve the denial. This may include, but is not limited to, make up parenting time, attendance at counselling, payment of costs, or a fine.

Another option available to parties is the “Power to Require an Appearance”, pursuant to paragraph 41 of the Parenting and Support Act. Under this provision, any person can be compelled to attend Court to explain why they are not complying with a court order. The Court then has the power to make any additional order deemed necessary to ensure compliance with the original order.

Contempt of Court Regarding Visitation

Unfortunately, these provisions are only available to those parties who have an Order issued pursuant to the Parenting and Support Act. If you are a parent who has an Order pursuant to the Divorce Act, you may choose to make an application for contempt. Those who have Orders pursuant to the Parenting and Support Act may also make a contempt application. Contempt applications are quasi-criminal in nature, and carry with them very serious consequences.

We encourage anyone who may have issues exercising their parenting time with the children to contact our office or submit the form below to arrange for an initial consultation to explore the options that may be available to you. Our family law attorneys specialise in child custody disputes and parenting time enforcement - we’re here to help you.