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CLRA & Best Interests of Child

If you have been involved in a custody or access dispute you are no stranger to the term “best interests of the child”. In the unfortunate event that you are forced to deal with a custody or access fight it is important to take a moment to turn your mind to what a judge or decision maker may consider when determining what is in the best interests of your child(ren). 

Both the Children’s Law Reform Act and the Divorce Act make reference to the best interests of the child. Canada’s Supreme Court has confirmed that when making a determination of custody and/or access, this is the singular test that is to be applied. The court has also ruled that “the best interests of the child” is an all encompassing concept, including the physical, emotional, economic, psychological moral and intellectual well-being of the child.”

All that said, how the determination of “the best interests of the child” is determined is as fluid and varied as the number of parenting disputes that it is applied to. It is through case law that we have come to understand that judges will approach the issue of custody not “from the perspective of which parent should have custody, but rather from the perspective of the child’s needs and what arrangement will best meet those needs.” 

Section 24 of the Children’s Law Reform Act sets out the factors that are to be considered when assessing the best interests of the child. Among others, these factors include: the views and preferences of the child (where this can reasonably be ascertained), the length of time the child has lived in a stable home environment, the plans proposed for the care and upbringing of the child as well as the permanence and stability of the family unit the child will live. 

These factors, as well as the others contained within the legislation, must be considered by the court when determining a custody and access dispute and will not necessarily be weighted equally. The particular facts of the case unilaterally govern. Courts have provided some insight and in depth analysis as they relate to the factors. By way of example, courts have found it appropriate to ask “on a day to day basis, which parent would the child miss most” when analyzing the parent’s ties with the child, a question that would likely be considered when dealing with the questions of Love, Affection and Emotional Ties

Another legislative concept that will often be applied by courts is the Maximum Contact Principle which requires a court to maximize the contact a child has with each parent. This principle is referenced in Section 16(10) of the Divorce Act which states: 

…the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. 

Another factor that courts may consider is a child’s siblings; generally speaking, courts will be reluctant to separate siblings in absence of a compelling reason to do so. Courts have taken the following position as it relates to their apprehension over the separation of siblings: 

While there is no presumption of law to this effect, the best interests of children are, in many cases, served by a custody situation that avoids splitting siblings between parents….However, splitting siblings may be appropriate in cases where there is a successful de facto situation and the children are settled and happy in the homes in which they live.

Additionally, a court will look at whether the child(ren)’s relationship with the parent’s new partners, blood ties and whether ordering a Section 30 assessment would be useful. A Section 30 Assessment is when a court appoints an individual with technical or professional skills to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. Section 30 assessments are not routine but will be ordered when there are serious clinical issues such as a psychological issue with respect to the child that requires expert assistance. A Section 30 Assessment can be distinguished from a Voice of the Child Report which allows a child to be heard during a custody proceeding by providing information about what the child thinks. This report is different from a Section 30 in that the professional writing the report does not provide his or her opinion. 

Despite the apparent simplicity involved in applying a singular test to the determination of custody and access, the concept itself is multifaceted and requires an in-depth analysis of numerous factors. Seeking advice from experienced family law counsel is always advisable when faced with a custody and access dispute. 

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This article is provided for general information purposes and should not be considered a legal opinion. Clients are advised to obtain legal advice on their specific situations.

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