When a marriage or common law relationship breaks down, parents must determine how they will make decisions for their children (joint or sole decision-making) and how time will be shared between the parents and children. The underlying test used by the court in cases where parents can’t agree on these matters is the “best interests” test. This standard and the factors that the court will consider are set out both in the Divorce Act and the Children’s Law Reform Act (CLRA).
In determining what arrangement is in the best interest of a child, the courts will assess the child’s physical, emotional and psychological safety, security and wellbeing. With that said, different legislations have specific factors that they take into consideration when establishing the best interest of a child.
Some common factors amongst the different legislation are as follows:
- The child’s views and preferences;
- The child’s age and stage of development;
- Nature and strength of the child’s relationship with parent, siblings, grandparent and any other person who plays an important role;
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage; and
- The existence of any family violence.
These principles are most often before the courts when decision-making responsibility, parenting time, guardianship, or relocation are being considered.
How Is “Best Interest” Determined?
The best interest of a child is determined on a case-by-case basis.
Section 30 of the CLRA allows courts to appoint a third-party who has technical or professional skill to assess and report the needs of the child, as well as the ability and willingness of the parties to satisfy those needs. These appointed third-parties can include psychologists, social workers, or psychiatrists who will evaluate the mental health and needs of the child, as well as the mental health and parenting skills of the parties in question. They will then provide their insight and judgment to the court. These assessments can then be used as evidence in a proceeding.
Section 16 of the Divorce Act states that courts shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. While it lists various factors to be considered, primary consideration is given to the child’s physical, emotional, and psychological safety, security and well-being.
Which Act Applies?
In Canada, both federal and provincial legislation that govern family law.
The Divorce Act is a federal law which applies to cases involving married parents who are seeking a divorce or have already divorced. It governs issues such as child support, parenting time, and decision-making responsibility for children of the marriage in question. This Act applies to anyone in Canada, regardless of where they got married (if they have lived in the jurisdiction where they are making their divorce application for at least 12 months).
The Children’s Law Reform Act is a provincial law. The CLRA addresses issues related to children, including parenting arrangements and child support. Unlike the Divorce Act, it applies to both married and unmarried parents but is particularly relevant when the parents are not seeking a divorce but rather, they are looking to address matters such as custody, access, and decision-making responsibility for children.
Why “Best Interest” Matters?
At the heart of family law disputes are the children involved, and the law recognizes this by putting their well-being first. The best interest of the child is not just a legal test, but it’s a statement that children have individual rights, needs, and are entitled to protection.
By grounding decisions in what’s best for the child, the law helps to ensure that outcomes are focused on stability, safety, and security, especially in times of family breakdown and conflict. Family law decisions shape a child’s environment, relationships and their future development. Having the best interest test allows the legal system to prioritize long-term child welfare over short term convenience or the preferences of the adult parties involved.
Children deserve an environment where they will grow and thrive, and the law has created a system to ensure that is their reality.
This blog post was written by Carly Baldachin, Summer Student, and Co-Managing Partner Kate Wright, Practice Lead of the Wills and Estates team and member of the Family Law, and Estate Litigation teams. Kate can be reached at 613-369-0383 or at kate.wright@mannlawyers.com.
