New Brunswick Child Custody Laws: What Parents Need to Know

If you're separating or divorcing in New Brunswick, the custody rules probably aren't what you expected. Since March 2021, the terms "custody" and "access" no longer exist in Canadian family law. They've been replaced by "decision-making responsibility" and "parenting time" — a shift designed to reduce adversarial language and focus on the child's wellbeing.

Here's what actually governs your situation, and what it means for your parenting arrangement.

The Two Laws That Apply to NB Parents

New Brunswick custody arrangements fall under two statutes, depending on your situation:

• The federal Divorce Act governs parenting arrangements when married parents are divorcing. It was amended in March 2021 to eliminate "custody" and "access" terminology.
• The provincial Family Law Act (S.N.B. 2020, c. 23) governs parenting arrangements for unmarried or common-law couples, or married parents who want parenting orders without filing for divorce.

Both laws use the same child-focused framework and apply the same "best interests of the child" standard when courts make parenting decisions. The practical difference is which court process you follow and which forms you file.

What "Decision-Making Responsibility" Actually Means

Under the old system, a parent with "sole custody" made all major decisions. Now, the law separates physical time with the child from the authority to make significant decisions about:

• Health and medical care — choosing doctors, consenting to treatments, dental care
• Education — which school the child attends, tutoring, special education decisions
• Culture, language, religion, and spirituality — religious instruction, cultural activities
• Significant extracurricular activities — competitive sports, expensive programs

Parents can share decision-making jointly, divide it by subject area (one parent handles medical decisions while the other handles education), or one parent can hold sole decision-making authority.

Routine day-to-day decisions — bedtime, meals, homework, emergency medical care — are made by whichever parent has the child at that moment.

What "Parenting Time" Replaces

"Parenting time" replaces both "physical custody" and "access." It defines the specific periods when your child is in your care and under your direct supervision, including time when the child is at school or daycare during your scheduled time.

The 40% threshold matters here: if each parent has the child for at least 40% of the year (roughly 146 days), the arrangement qualifies as "shared parenting time," which changes how child support is calculated under the Federal Child Support Guidelines.

Old Orders Are Still Valid

If you have an existing court order or separation agreement that uses "custody" and "access," it remains legally enforceable. You don't need to go back to court to update the terminology. However, if you're modifying an existing order, the new terms will be used in the updated version.

Many NB family lawyers still use both sets of terms — "custody" alongside "decision-making responsibility" — because most parents searching for help are still using the older language. The law changed, but Google searches didn't.

Two Different Court Tracks in NB

Adding to the complexity, New Brunswick runs two different procedural systems depending on where you live:

Rule 81 — Family Case Management (Saint John and Moncton): All cases are triaged through a Case Management Master. You file Form 81A to start a parenting application. Joint petitions are not permitted — every case goes through mandatory case conferences aimed at early resolution.

Rule 72 — Standard Process (Fredericton, Bathurst, Campbellton, Edmundston, Miramichi, Woodstock): A traditional paper-filing system. Joint petitions are allowed, which can save time and money by eliminating formal service of process.

If you're unsure which track applies to you, check which judicial district your local Court of King's Bench falls under.

How Courts Decide Parenting Arrangements

When parents can't agree, New Brunswick courts evaluate every parenting arrangement using the "best interests of the child" standard. The court examines factors including:

• The child's physical, emotional, and psychological safety
• Each parent's willingness to support the child's relationship with the other parent (the "friendly parent" factor)
• The child's existing relationships with parents, siblings, and grandparents
• The history of caregiving before separation
• Any history of family violence

The child's own preferences may be considered, weighted by their age and maturity, though children rarely testify directly in NB family court.

Next Steps for Separating NB Parents

Whether you're negotiating a parenting agreement privately, going through mediation, or preparing for court, understanding the current legal framework is the first step. The New Brunswick Child Custody & Parenting Plan Guide walks you through the entire process — from choosing the right decision-making structure to building a parenting schedule that meets the 40% threshold — with NB-specific worksheets and filing instructions for both Rule 72 and Rule 81 court districts.

See more New Brunswick guides →