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In Canadian family law, one of the guiding principles is the “best interests of the child”. The concept can be difficult to define, but is of utmost importance in family law. It is a legal principle developed over time through both legislation and case law. But what does it mean and how does a court determine what is in the child’s best interests?
When parents or judges make decisions about guardianship, parental responsibilities, parenting time and contact with the child, they must consider the best interests of the child. A child’s right is considered paramount to all other rights, even the rights of the parents. The parents’ rights will always be secondary to those of the child.
In Ontario, the Children’s Law Reform Act and the Divorce Act say that decisions about custody and access are based on the best interests of the child. The Children’s Law Reform Act requires that a court consider all of the child’s needs and circumstances including:
- The love, affection and emotional ties between the child and,
- each person entitled to or claiming custody of or access to the child,
- other members of the child’s family who reside with the child, and
- persons involved in the child’s care and upbringing;
- The child’s views and preferences, if they can reasonably be ascertained;
- The length of time the child has lived in a stable home environment;
- The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
- The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
- The permanence and stability of the family unit with which it is proposed that the child will live;
- The ability of each person applying for custody of or access to the child to act as a parent; and
- The relationship by blood or through an adoption order between the child and each person who is a party to the application.
If the parents cannot come to an agreement about what is best for their child, a court may ask a professional to make a formal assessment. Courts will often rely upon the Office of the Children’s Lawyer as well as social workers or psychologists. The older the child is, the more important the child’s own wishes are.
When making an order for custody or access, a court will also consider whether there have been any instances of domestic violence or substance abuse.
Courts are required to conduct a fair and balanced analysis of the situation based on the individual facts.
If you have questions about a family law matter, please contact Jason P. Howie, online or at 519.973.1500.
