Best Interest of a Child in Parenting and Custody DisputeS
In parenting and / or custody disputes, the best interest is considered from the child’s perspective not from the perspective of either parents. The best interest of the child test is commonly used by Canadian courts in parenting and child custody disputes. Nonetheless, one may wonder what does the best interest of the child entail.
The Divorce Act R.S.C. 1985, c. 3 (2nd Supp.) and various provincial legislations, such as: the Family Law Act SA 2003, c F-4.5 in Alberta explain the concept of best interest of the child. s.16(8) of the Divorce Act states that:
In making an order under this section, the court shall 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.
- 18 of the Family Law Act states that:
18(1) In all proceedings under this Part except proceedings under section 20, the court shall take into consideration only the best interests of the child.
(2) In determining what is in the best interests of a child, the court shall
(a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and
(b) consider all the child’s needs and circumstances, including
(i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development,
(ii) the history of care for the child,
(iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
(iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them,
(v) any plans proposed for the child’s care and upbringing,
(vi) any family violence, including its impact on
(A) the safety of the child and other family and household members,
(B) the child’s general well-being,
(C) the ability of the person who engaged in the family violence to care for and meet the needs of the child,
(D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child,
(vii) the nature, strength and stability of the relationship
(A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and
(B) between the child and each person in respect of whom an order under this Part would apply,
(viii) the ability and willingness of each person in respect of whom an order under this Part would apply
(A) to care for and meet the needs of the child, and
(B) to communicate and co-operate on issues affecting the child,
(ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,
(x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and
(xi) any civil or criminal proceedings that are relevant to the safety or well-being of the child.
The lists stated in the above acts illustrate a non-exhaustive list of factors which could be used to analyze the best interest of the child. The relevant weight of the factors in the lists in determination of the best interest of the child vary on a case-by-case basis. For example, in Constant v. Easton 2020 ABPC 185, the Provincial Court of Alberta held that best interest of the children as per s. 18 of the Family Law Act given their history of care, their strong bond with their mother and the stability of the mother’s care requires that they have greater time with their mother. In Thember v. King 2019 ABQB 697, the Alberta Court of Queen’s Bench dismissed the mother’s application to relocate the children to New Brunswick as it was contrary to the best interest of the children as per s. 18 of the Family Law Act. Parties could benefit by seeking professional help of a lawyer or a psychologist to determine the course of action congruent with the best interest of the child.
If you have any question regarding custody of your child, please contact the family lawyers at Osuji & Smith.
Author: Amit Chowdhury