The phrase “best interests of the child” is one of the most loaded terms in all of family law. Beneath the surface of these five words lies myriad concepts and considerations that often rouse both the emotions of parents and the prospect of litigation.
Fueling this flame, the federal Divorce Act did little to add meaning to this phrase, stating only that in making a custody order courts are to take into consideration “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” While for many years the provincial Children’s Law Reform Act (CLRA) contained a list of factors to consider when determining the best interests of the child, many considered even this list to be in need of an update.
Bills C-78 and 207 provide this update. The bills create a clearer statutory framework listing factors for parents and family law professionals to consider with respect to the best interests of the child. The factors contained in the bills are identical, providing much needed clarity and uniformity across federal and provincial family laws.
The New Statutory Factors for the Best Interests of the Child
Under the new section 16(2) of the Divorce Act and section 24(2) of the CLRA, when determining the best interests of the child courts “shall give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.” This is mandatory.
The new section 16(3) of the Divorce Act and section 24(3) of the CLRA give meaning to this phrase by providing the below list of non-exhaustive factors relevant to the best interests of the child. In a policy paper released June 3, 2020, the Department of Justice explained that the safety, security, and well-being of the child must be prioritized above all other considerations, and that the purpose of the listed factors is to “provide clarity and promote a shared understanding among parents, family justice professionals, lawyers and judges.” Those factors that the Court, parents and family law professionals must consider include:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) 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;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) 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;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
It should be noted that many of these criteria are already encapsulated by the current list of best interests of the child factors contained in the CLRA. However, much of the criteria has been reworded in Bills C-78 and 207 to provide uniformity across the Country and, in some instances, new criteria have been legislated to the best interests definition. In particular, the factors contained in paragraphs (f), (j), and (k) will be new to both the Divorce Act and the CLRA. Factors (c) and (i), which focus on maximizing communication and contact between the child and both parents, will also be new to the CLRA, while these factors were previously captured by the principle of “maximum contact” in section 16(10) of the current Divorce Act.
Due to its importance and the lengthy call to action that precipitated its addition to the legislation, one of our future blog posts in this series will speak more to the factor of family violence.
While the new best interests of the child factors is an important and welcome change that will hopefully provide more guidance and reduce tension amongst litigants, we will need to wait many more months, and perhaps years, before we know if this hope will materialize. The potential for disputes remains. The above list of factors is not exhaustive. Courts may consider factors not on the list and may prioritize one factor over another based on the circumstances of a given case, although section 16(2) of the Divorce Act and 24(3) of the CLRA always require the child’s physical, emotional and psychological safety, security and well-being to be given primary consideration – a strong message from the legislature putting the focus squarely on the safety of children.
No doubt family law practitioners and parents alike will wait with bated breath to see if the new statutory framework will bring real change, or simply be a distinction without a difference.