Which Acts are used to determine the best interest of the child?

 Both the Children’s Law Reform Act (CLRA) and the Divorce Act have statutory lists of best interest factors. The federal Divorce Act was revised in March 2021 with significant changes to the best interest of the child. The amendment  includes a detailed list of factors that the court has to consider when determining the child’s best interest. 

 The Divorce Act deals with parenting orders for anyone who is married and wants a divorce within Canada. 

 The CLRA addresses decision-making responsibility and parenting time with parents who have not been married and married people who do not wish to divorce. 

 How does the UN apply the  concept of “best interests of the child”?

 Under the United Nations Convention on the Rights of the Child (CRC), the child’s best interest is applied as a threefold concept that includes three principles: a substantive right, a fundamental and interpretative legal principle, and a rule of procedure.

1. A Substantive Right: Whenever a decision affects a child, a primary consideration of the child’s best interest should occur.
2. An Fundamental and Interpretive Legal Principle: If a legal provision is open to multiple interpretations, conflicting interpretations must be resolved by choosing the interpretation that most effectively serves the child’s best interest.
3. A Rule of Procedure – Legal Representation, Timely Decisions, Legal Reasoning:

There are three aspects of the procedural rule. 

• • A child needs legal representation when their best interest is to be formally assessed and determined by the court.
  • Decisions regarding children must be made in a timely manner.
  • A legal reasoning for the decisions made concerning a child must be clearly stated and explained. This includes how factors were weighed and how the best interest of the child was considered and respected in the decision-making. If the decision differs from the child’s view, that should be clearly stated and the reasoning for why the other considerations outweighed the child’s view needs to be explained.

 What is the “best interests of the child” concept?

 Children are a vulnerable population that is less likely to be able to make a strong case for their interests compared to adults. This is why the “best interests of the child” is a right and guiding principle of all CRC rights. 

 This means that in all orders concerning children, what is best for the child will be a primary consideration. The CRC states that this includes public and private social welfare institutions, courts of law, and administrative authorities or legislative bodies. 

 The best interests principle is highly contextual because each child and family is different. All parties involved are responsible for helping the child secure a future in their best interest. When courts analyze a child’s best interest, it is done through the child’s point of view, and not the parent’s perspective or preferences. 

 Children’s views, interests, and needs will be considered by the court when creating parenting plans and other parenting orders; however, courts will also consider the child’s age, stage of development, level of maturity, and capability to understand the implications. This will lead to parenting orders that better reflect the interests, well-being, safety, and stability of the child. 

 How has the court system responded to CRC rights?

The Divorce Act states that the court will give primary consideration to the child’s physical, emotional and psychological safety, as well as security and well-being. Both the Divorce Act, section 16(3), and the CLRA, section 24(3) detail a specific list of criteria and factors that the court is required to consider to determine the best interests of the child. The two lists of factors are essentially the same and will be listed below. These factors apply to every case, and the weight of each one will depend on the specific facts unique to each case. 

 Which factors do courts consider when determining the “best interest of the child”?

 This list of factors comes directly from the Divorce Act, section 16(3), and the Children’s Law Reform Act, section 24(3). 

• The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
• the history of care of the child;
• the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• any plans for the child’s care;
• the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
• the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
• any family violence and its impact on,
  • the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
  • the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

 What is “No Presumption of Equal Parenting in the “best interests of the child”?

 The child’s best interests are the rights of the child, not the parent. It focuses on the child’s views and preferences. What the court deems best for the child may not always align with the parent’s idea of what is best for their child. 

 Courts understand that children generally benefit from spending time with both of their parents and that a child deserves to have a meaningful and consistent relationship with both parents. Though shared parenting may be desired, it is not automatically obtained, and there is no presumption of joint or equal parenting.

 In section 16(6) of the Divorce Act and section 24(6) of the CLRA, the previous “maximum contact” principle, which was found in the Divorce Act and CLRA, has been replaced with the parenting time factor. The Divorce Act and CLRA state that “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the “best interests of the child.” At all times, the child’s best interest is the main focus, and this alone does not indicate that equal parenting time will be appropriate for the child.

 The allocation of parenting time requires that the court views the child through a holistic lens and considers their needs and the people around them. Every child’s needs are different, and every family is different. Courts will use this information to make an appropriate parenting time order in the child’s best interest.

What is Family Violence factored in?

The revised Divorce Act of March 2021, defines family violence in the context of the best interests of the child. Family violence means any conduct, whether or not it constitutes a criminal offense, by a family member towards another family member, that

• is violent, or
• is threatening, or
• forms a pattern of coercive and controlling behaviour, or
• causes a family member to fear for their safety or the safety of another individual.  

 The Divorce Act understands that family violence can take many forms and harm both victims and witnesses. It states that a child’s direct or indirect exposure to family violence is considered child abuse. It provides a non-exhaustive list of different types of behaviours that can be regarded as family violence. This includes

• abuse, such as physical, sexual, psychological, and financial abuse;
• threats to kill or cause bodily harm to another person;
• harassment, including stalking;
• failure to provide the necessaries of life;
• threats to kill or harm an animal or damage property; and 
• killing or harming an animal or damaging property.

How Does Family Violence Play a Role in Determining The Child’s Best Interests 

Family violence and its impacts on the child will always be considered by courts when determining parenting plans and orders. This is stated in the Divorce Act, section 16(4), and the CLRA, section 24(4). An occurrence of family violence does not automatically mean that a parent will be required to have supervised parenting time, or will not be given parenting time at all. Courts will take into consideration the nature, seriousness, and frequency of the violence and when it occurred. This includes whether the violence was directed towards the child and if the child was directly or indirectly exposed to it. As well as if the outcome of the violence led to any physical, emotional, or psychological harm to the child and compromised the child or other family member’s safety. Courts will also see if the person engaging in the family violence is taking any steps to prevent further violence from occurring and has good intentions of improving their ability to care for and meet the needs of the child.