Best Interests of the Child: A Universal Test

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  • August 26, 2014

best interests of children - custody, access, divorce, separation, family law

The very first consideration of separating and divorcing parents is about their children. Whether the children’s needs are discussed in front of the judge or perhaps with the assistance of a government agency such as the Office of the Children’s Lawyer the plan developed for each child’s care, moral training, education and other matters will be closely scrutinized. The same scrutiny will be applied if the parents work privately using the collaborative negotiation approach or through the traditional negotiation approach.

It is the child’s right to a parent who will look after his or her best interests. That right creates a moral imperative for the natural and adoptive parents of the child which in turn benefits society’s stability and security.

‘Best interests of the child’ has over the years of judicial inquiry and interpretation become a broad concept with wide-reaching implications from physical care of a child inclusive of that child’s psychological, emotional, intellectual, and spiritual welfare. It is a principal which is purely child focussed. It promotes the child’s right to thrive, be educated, and receive quality care until the child becomes financially self- sufficient.

More than 500 references of the term “best interests of the children” can be found in legislation across Canada http://ow.ly/z18tm. The principle is prominently set out in legislative preambles to adoption and child welfare statutes. It also is stated in the Ontario Family Law Act relating to parental decision making and visiting provisions negotiated in domestic contracts. The best interests test is not limited to within Canada’s borders; it is an internationally recognized and accepted legal principle.

The Canadian Divorce Act with effect across Canada for married spouses who are separating provides in clear language:

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

 a child…should have as much contact with each spouse as is consistent with the best interests of the child

The Ontario Children’s Law Reform Act at section 24 http://ow.ly/Sznpf provides a broad yet partial list of factors your family law lawyer will review with you in assessing whether the proposed parenting plan adequately promotes each child’s best interests. Part of that assessment will be a parent’s ability to act as a parent and past conduct with his or her spouse, a member of the household or any child.

  • Matters relating to your child’s best interests can be complex to resolve upon blending new families, cohabitation with a new partner, or upon separation. Lorisa Stein welcomes you to explore with her the best approach for your family. For more information please contact her using the Book an Appointment tab or the Contact page. You may also call Lorisa directly at 416 596-8081.
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