Best Interests Of The Child: A Primary Consideration In Decision-Making And Parenting Time Cases

Divorce cases involving the best interests of the child can, indeed, bring physical, emotional and mental turmoil to a great extent. Under the Canadian Family Law, the “Best interests of the Child (or children)” is the key parameter in deciding decision-making responsibility, parenting time, and child-support cases. The ‘best interests of the Child’ test expects the courts to be concentrated on contemplating what is in the greatest interest of the children rather than on the so-called parenting rights.

Decision-Making Responsibility And Parenting Time Laws In Canada

The Canadian Family law has laid down separate procedures if you are caught up with a parenting battle. Predominantly, the Divorce Act and the Child’s Law Reforms Act are applicable in the situations as:

• If the couple is married and the marriage comes to an end, then the Divorce Act is applicable. Under that regulation, courts are supposed to take into account the best interest of the child while managing parenting decisions and care issues.
• If the couple is not married and decides to separate, then the courts might utilize the provisions of Child’s Law Reforms Act by incorporating an evaluation of strategies and standards in determining a child (or children) cases.

Best Interests Of The Child

The Divorce Act amendment of 1986 elevated the ‘best interest of the child’ from the ‘paramount’ to the ‘only’ relevant consideration in child’s access (Gordon v Goertz).  The determination of the ‘best interest of the child’, as important as it is, is a challenging one.

As per Mclachlin J in Young V Young it is a legal test, although a flexible one, and is to be applied according to the evidence of the case, be held objectively. There is no room for the judge’s individual predictions and partialities.

Undoubtedly, a great deal of the Canadian family law jurisprudence is identified by the provisions enshrined in the Convention on the Rights of the Child (CRC). The Convention on the Rights of Children (2013), Comment # 14 (CRC) describes the concept as a three dimensional one; 1) a Substantive right, b) an interpretative legal obligation, c) A procedural rule.

a)  SUBSTANTIVE RIGHT:

The ‘best interests of the child’ principle as a substantive right holds that the child has a positive right to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake such as decision-making responsibility, and the guarantee that this right will be executed whenever a decision is to be taken regarding a child or children.

By means of Article 3, paragraph 1 (CRC) creates an essential obligation for States and is acutely pertinent (self-executing) and can be raised before a court.

b)  INTERPRETIVE LEGAL PRINCIPLE/OBLIGATION:

If a provision of law is exposed to more than one interpretation, the interpretation which most effectively works for the child’s best interests ought to be picked. Moreover, the rights preserved in the Convention and its Optional Protocols set forth the entire framework for interpretation.

C)  A RULE OF PROCEDURE:

Whenever a decision is to be taken that will influence a specific child, a distinguished group of children or children in general, the decision-making process should incorporate an assessment of the conceivable consequence (positive or negative) of the decision on the child or children concerned. Evaluating and deciding the wellbeing of the child requires procedural assurances.

Moreover, the justification of a choice should show that the right has been expressly considered. In such manner, States parties will clarify how the right has been regarded in the decision, or at least, what has been viewed as in the child’s wellbeing; what measures it depends on; and how the child’s interests have been counted against different contemplations, be they wide issues of strategy or individual cases.

Child, Youth and Family Services Act 2017, brought into force in April 2018, the following considerations to be made for a ‘child in need of protection’ when determining the best interest of such a Child, or such Children:

S.74(3) of the Child, Youth and Family Services Act 2017 mentions that:

(3)  Where an individual is guided in this Part to make an order or assurance in the greatest interests of a child, the individual shall,

a) consider the child’s perspectives and wishes, taken due account as per the child’s age and maturity, except if they can’t be determined;

b) consider any other circumstance of the case that the individual considers applicable, including,

(i)        the child’s physical, mental and emotional needs, and the suitable care or treatment to address those needs,

(ii)       the child’s physical, mental and emotional degree of development,

(iii)      the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, belief, sex, sexual orientation, gender identity and gender expression,

(iv)      the child’s social and linguistic heritage,

(v)       the significance for the child’s advancement of a positive relationship with a parent,

(vi)      the child’s relationships and emotional ties to a parent, sibling, relative, other individual of the child’s extended family or member of the child’s community,

(vii)     the significance of coherence in the child’s consideration and the conceivable effect on the child of interruption of that coherence,

(viii)    the benefits of an arrangement for the child’s care proposed by a society, including a suggestion that the child be placed for adoption, contrasted with the benefits of the child staying with or returning to a parent,

(ix)      the effects on the child of deferral in the disposition of the case,

(x)       the risk that the child may experience harm through being removed from, returned to or permitted to stay in the care of a parent, and

(xi)      the degree of risk, if any, that warranted the finding that the child needs protection.

Keeping in mind the dismay, stress and, uncertainty in divorce, decision-making and parenting proceedings, it is suggested that the services of a divorce lawyer must be obtained in order to best reflect how the parent’s position in the divorce best achieves the ‘interests of the child (or children).

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