When any decision is being made in relation to a child, the legal test required is the same across Canada. This legal test is called, “Best Interests of the Child,” and it involves a variety of factors and criteria for Judges to consider when they apply the legal test to situations involving a child.
The Best Interests of the Child test is also gender neutral, it does not make any assumptions about a parent’s gender and their abilities to care for their child. For example, the Court does not assume that a mother would be better at caring for young children such as babies just because she is a woman who may have, “maternal instincts.” This stereotype about gendered parenting is outdated and is no longer used by the Courts to determine which parent would be better able to care for the child.
When applying the Best Interests of the Child test, the Judge will only consider what is best for the child, not what is best for the parents or guardians. No factor is to be given more weight than another factor.
The factors for the Best Interests of the Child are found in section 16 of the Divorce Act:
- the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- the nature and strength of the child’s relationship with each spouse, each of the child’s sibling and grandparents and any other person who plays an important role in the child’s life;
- each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- the history of the care of the child;
- the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- any plans for the child’s care;
- 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;
- the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- any family violence and its impact on, among other things,
- the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
- any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
It is important to keep in mind that when it comes to relocation and mobility, such as one parent moving to another city with the child, there are additional factors that a Judge will consider. You can find these factors in the Divorce Act under section 16.92. These extra relocation factors are:
- the reasons for the relocation;
- the impact of the relocation on the child;
- the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
- whether the person who intends to relocate the child complied with any applicable notice requirement under 16.9, provincial family law legislation, an order, arbitral award, or agreement;
- the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
- the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
- whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
Things that are not to be considered when determining whether it is in the Best Interests of the Child to relocate are whether the parent would relocate without the child if the child was not permitted to relocate.
If you have a family situation where parents or guardians cannot agree on what is best for a child, please contact our Family Law Team at Robertson LLP and we can help shed some light on potential solutions for you and your family.
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