First principle: Best interest of the child
Best interest of the child is long recognized as a guiding principle when it comes to decisions about Child custody. Support. Access rights. And questions of a child’s health, education and general wellbeing. Therefore, all the modifications in the Divorce Act are following this principle. Moreover, the principle has now become officially a sort of a “trump card”. As the Courts may use it to adjust pretty much everything related to a child. Therefore, aarenting time and decision-making responsibility (new terminology coming instead of “child custody” and “access rights”) shall be exercised in a manner consistent with the best interest of the child. Moreover, international judgement recognition may be refused. If a Court in Canada finds that such a judgement is contrary to the best interest of the child. Any other factor mentioned in the modified Divorce Act should be applied in line with the best interest of the child. Best interest of the child dictates that the divorcing parents do their best to shield their children from the stress. Therefore, children should not see or hear conflicts or consequences of those. Parents are required to provide complete, accurate and up-to-date information (including financial information and facts related to safety, for example). As the Courts should have it all to better assess the best interest of the child.
Additionally, one of the significant changes in this area is that there is no more presumption in favor of any particular parenting arrangement. As it was before (“as much contact with each spouse”). Consequently, best interest of the child should be looked into in every single case.
Factors: what is in the Best interest of the child
The modified Divorce Act, based on the existing case law and international documents, gives an extended explanation of the best interest of the child. The primary consideration now is the child’s physical, emotional and psychological safety, security and well-being. This factor goes above all the others.
Other factors to consider:
Several other factors follow: child’s needs (given the age, temperament and development stage — like a need for stability and routine for infants. As compared to adolescents, for example). And special needs (in case of disability), strength of the child’s relationship with each of the parents, relationships with the members of the child’s larger family (siblings, grandparents and other important persons), each parent’s readiness to maintain the child’s connection with the other spouse (there are some limitations, though, like in case of domestic violence), roles played by family members in the child’s life and care before divorce, child’s own views and preferences (weighted according to the child maturity), cultural, religious, spiritual, linguistic upbringing of the child, ability and means of each parent to care and meet the needs of the child, to communicate and cooperate in caring of the child, their plans for the child’s care, appropriateness of the proposed arrangements, history of family violence and its impact on the parents’ ability to care and meet the child’s needs, any civil or criminal proceeding, order, condition or measure related to safety, security and wellbeing of the child.
Implications
“Child’s views and preferences” consideration is brought from the UN Convention of the Rights of the Child, which says that children capable of forming their views have right to meaningfully participate in decisions that affect their lives.
“Cultural aspects” historically apply to indigenous children and extended family arrangements.
“Plans for the child’s care” refer to a parenting plan tool (https://www.justice.gc.ca/eng/fl-df/parent/ppt-ecppp/form/form.html) with the goal to promote agreement between parents in taking care of their child. If parents agree on a parenting plan, the Court might include it into a parenting or a contact order (unless, of course, it’s not in the best interest of the child).
The “friendly parent rule” (meaning that a parent willing to make it easier for the child to maintain relationship with another parent is better suited to deal with the child’s needs) existed before, but now it’s included in the list of the “best interest of the child” factors.
Our lawyers: to defend your rights:
All in all, the best interest of the child is even closer to a carte blanche now, further widening the scope of judicial discretion.
These changes into the Divorce Act are not in force yet. They were meant to become in force on July 1, 2020, but in the circumstances, it is not clear if this date will be observed. If you have questions, do not hesitate to contact our office for a consultation by phone: 514-816-4150 or via email: [email protected].
Lawyers of Allen Madelin are recognized to be among the best divorce lawyers in Montreal. They defend their clients’ interests vigorously. And with commitment in divorce, separation, spousal support, child support payment and custody cases. They also offer education on the important implications of the recent changes in the Divorce Act. Contact us for more information.
