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“The best interests of the child”: A guiding principle of Canadian family law

This week’s blog is devoted to a concept that is of the ultimate importance in family law, but that can be difficult to define: the “best interests of the child.” What does this mean, and how does the court determine what is, in fact, in a child’s best interests?

The “best interests of the child” is a legal principle developed over time through legislation and case law. This principle results in a right of the child and a corresponding obligation upon the parent.

When custody and access are disputed in a court of law, a child’s right is considered paramount to all other rights; this means that the court will consider only the best interests of the child. A parent’s interests, however sincere and pressing, are second to those of the child.

Where parties are unable to agree upon what is best for their children, a court may look to a professional to make a formal assessment, relying upon the advice of the Office of the Children’s Lawyer, social workers or counseling professionals.*

In determining what is in the best interest of a child, the court will weigh several factors when making an order for custody and access. Under the Children’s Law Reform Act:

The court shall consider all the child’s needs and circumstances, including:

  • the love, affection and emotional ties between the child and,
    • each person entitled to or claiming custody of or access to the child
    • other members of the child’s family who reside with the child, and
    • persons involved in the child’s care and upbringing
  • the child’s views and preferences, if they can reasonably be ascertained;
  • the child’s views and preferences, if they can reasonably be ascertained;
  • the length of time the child has lived in a stable home environment;
  • the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  • the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
  • the permanence and stability of the family unit with which it is proposed that the child will live;
  • the ability of each person applying for custody of or access to the child to act as a parent; and
  • the relationship by blood or through an adoption order between the child and each person who is a party to the application (CLRA, s.24(2)).

Though not listed as one of the above factors, courts will also consider any instances of domestic violence or concerns related to substance abuse when making an order for custody or access.

Practically speaking, it is the case law that determines how the above criteria are interpreted. Under the Children’s Law Reform Act, the mother and the father share an equal right to custody; there is no presumption of one parent’s right over the other. Given this default position, Canadian courts have helped define the best interest of the child through a number of custody and access cases.

To illustrate how the court interprets these factors, we have included six very different cases below. Van de Perre v. Edwards is a 2001 Supreme Court decision involving the best interests of a child born to a bi-racial, extramarital relationship between Van de Perre (a Caucasian woman) and Edwards (an African American man).  After the birth of the child, Edwards and his wife (also African American) applied for custody of the child, placing a great deal of emphasis on the fact that they were better equipped to raise a child of mixed heritage. Ultimately, the court held that it was in the child’s best interest to remain in the care of his mother and that remaining in her care was a greater benefit than the cultural significance of awarding custody to the Edwards.

In Gordon v. Goertz (a 1996 Supreme Court decision), the relocation of the child to Australia with his mother was deemed to be in the child’s best interests. Although the father and child enjoyed frequent access, the court held that remaining in the mother’s care outside of Canada while she attended school was more consistent with the child’s best interests overall.

A more recent Ontario decision on mobility is Hazelwood v. Hazelwood. In this 2012 matter, a Toronto mother was ordered to either relinquish custody of her children to the father, or move back to Timmins with the children where the family had resided prior to the breakdown of the marriage. This decision preserved the status quo, unlike in Gordon v. Goertz.

Contrary to popular belief, fathers are frequently awarded custody of children if this is deemed in the best interest for the children involved. In Fishback v. Fishback (a 1985 decision), the Ontario District Court awarded custody of two children of the marriage to Mr. Fishback. The court held that Mrs. Fishback was prepared to deprive the children of the stability of a good and involved father for no other reason than to find more excitement in life in her choice to relocate with her new partner. Mr. Fishback had shown a total dedication to keeping the family together, while Mrs. Fishback had put her own desires ahead of the children’s best interests. The court found that the husband’s plans for future child care were more stable than those of the wife and that the husband’s new partner had more to offer the children than did the wife’s partner.

As demonstrated in Libbus v. Libbus (2009), other factors are considered when making decisions in the best interests of the child. In this case, parties had to resort to a trial to determine which school the children should attend. The mother requested a school near her new Toronto home that was more supportive of the Jewish faith, while the father preferred a school in their accustomed neighbourhood in Uxbridge. The parties had always agreed to raise the children in the Jewish faith and ultimately the mother’s application was granted. It was in best interests of the children to attend the new school, because without a school and community change, the children would be likely to lose an appreciation of their religious and cultural identity.

In Craig v. Antone, (a 1987 Ontario decision), the court held that access is to be ordered only where it is in the child’s best interest. The lack of interest shown by the father towards the child and the father’s history of drug and alcohol abuse, along with criminal activity, were such that there would be no benefit for the child in having contact with the father. This Father was given a “no access” order, which is very rare; however, the court saw no justification for even supervised access to the child in this particular case.

In all cases, the judiciary will perform a fair and balanced analysis based on the facts. The party that can best demonstrate that the child’s current and future interests will be made a priority is generally the party that receives custody. More often than not, both parents are capable of demonstrating this ability and can cooperate amicably in a joint custodial relationship.

Comments ( 1 )

  • Nick Mallory says:

    Thanks for explaining what “best interests” means and how the court makes the decision. I liked your example of a father gaining custody; I had always thought that fathers rarely received custody. I appreciate you taking the time to elaborate on this subject.

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