When parents have separated and need to make decisions about their child, we often hear them saying “it’s what is best for Johnny” or “that isn’t in Sally’s best interest”. However, just because one parent claims that something is in the child’s best interest does not make it so.
“Best Interest of the child” is a legal term that is used in the Courts, and in both federal legislation (the Divorce Act) and provincial legislation (the Children’s Law Reform Act). Although there are slight differences between how each law defines the term, the best interest of the child is the guiding principle which judges must use in making decisions that affect or are regarding a child, especially those involving custody and access. When a case has been brought to court, it is ultimately the judge who decides what is in the best interest of a child, not the parents, and not the child’s lawyer, if one is appointed.
Under the Divorce Act, the best interest of the child is determined by examining the conditions, means, needs and other circumstances of the child. The Children’s Law Reform Act, on the other hand, gives a fairly detailed list of factors for a judge to use to determine the best interest of the child. These include:
- The emotional ties between the child and others, including parents, grandparents, siblings, other family members who live with the child, and other persons involved in the child’s upbringing and care;
- The child’s views and preferences, if they can be reasonably determined;
- The amount of time the child has lived in a stable home environment;
- Each parent’s ability and willingness to provide the child with the necessities of life, providing guidance and education, and providing any special needs required by the child;
- Each parent’s proposed plan for the child’s care and upbringing;
- The permanence and stability of the family unit that the child is proposed to live in;
- The ability of a person to act as a parent to the child; and
- Any familial relationship between the child and the parties to the court application
It is important to understand that the Court will not always be able to determine a child’s views and preferences. This is especially the case when a child is very young and unable to clearly express their wishes.
Parents who are in a court proceeding should be aware of this and not try to discuss the court proceedings with their child in order to try to determine the child’s wishes. Although it is important that a child’s point of view be acknowledged and considered, parents can put a lot of pressure on their child by asking and inquiring about their child’s wishes when it comes to custody and access. Children may feel pressured to answer a certain way, or may only tell you what they think you want to hear.
As well, just because a child has expressed a desire to live primarily with one parent, or has said they want certain time or access with a parent, does not mean that the Court will order this. The child’s views and preferences are just one aspect in determining the best interest of the child, and the Court is required to look at the child’s wishes within the context of the case. For example, a child may only express a desire to live with Parent A because at Parent A’s home, there is a lack of structure, and the child has no rules. This, however, may not necessarily be in the best interest of the child.
A judge is required to take into consideration all the factors that are relevant to the child in order to determine their best interest; however the weight that they give to each factor may vary depending on the circumstances. A family law lawyer can help you prepare for court so that the judge has all the necessary information to determine what is in your child’s best interest.