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New Divorce Act Children's Best Interests

A New Divorce Act Children’s Best Interests test takes effect in early 2021. Maclean Law’s BC and Alberta lawyers are already helping educate our clients on winning child parenting time strategies. Consult our family lawyers who focus on family law and who have won multiple accolades for their skill.

New Divorce Act Children’s Best Interests 1 877 602 9900

These are unsettled times. The COVID-19 pandemic continues to dominate our lives: medically, socially, and economically. COVID-19 has even affected the passage of new family law legislation. In 2018, the Federal government announced plans to amend the federal Divorce Act, originally planning such changes to take effect on July 1, 2020.  Due to the COVID-19 pandemic, changes to the Divorce Act have now been delayed to take effect on March 1, 2021.

Best New Divorce Act Children’s Best Interests Lawyers

The Divorce Act deals with many issues facing separating married couples, including termination of the marriage, children, and financial support of both the spouses and children. However, the current legislation, in its present form since 1986, is widely considered outdated and conflictual, leading the Federal government to update this critical piece of family law legislation. In a series of articles, we will look at three (3) of the main changes in the new Divorce Act, namely:

  1. Codification of the rules of relocation (Mobility);
  2. Clarifying the definition of “Best Interests of the Child”, and;
  3. Clarify the terms of Domestic (ie. Family) Violence.

In our previous article: New Divorce Act Mobility we discussed the formalization of the rules of relocation (ie. Mobility). In this article we look at the second issue: defining the “Best Interests of the Child”.

“Best Interests of the Child” 1 877 602 9900

There are not many principles in family law as clear as that the bottom-line test regarding the parenting of children is doing what is in their “best interests”.  But this may also be one of the most general and vague tests in family law.  How is this determined? What are the specific factors the Courts will look at in determining what is in the “best interests of the child”?

The current federal Divorce Act does not contain a definition or even any specific factors regarding how to determine the “best interests of the child”. The closest the current Divorce Act comes in this regard is directing that in making an order regarding parenting of children, the Court is to consider “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other considerations of the child” [s. 16(8)]. Here is the official government’s childès best interests summary of changes.

Alberta Direction

Provincial legislation is not much more specific. The Alberta Family Law Act states [at Section 18(2)] that in determining what is in the “best interests of a child”, the Court shall “ensure the greatest possible protection of the child’s physical, psychological, and emotional safety, and consider all the child’s needs and circumstances”, then set out some 11 general factors to consider in this regard. With this lack of legislative direction, the Alberta Courts have attempted to come up with some specific factors to look at to determine what is in the “best interests of the child”, referencing some 17 somewhat more specific factors (see: RF v. SC, 2020 ABPC 50 (Alberta Provincial Court) citing Shaw v. Shaw (1997 NBJ No. 211) (New Brunswick Court of Queen’s Bench)].

New Divorce Act Children's Best Interests
New Divorce Act Child Best Interests lawyer Peter Graburn

New Divorce Act”

So, does the new Divorce Act really do anything to give some specifics to determine what is in the “best interests of the child’? The amended Divorce Act [at para. 16(1)] states that “[t]he Court shall take into consideration only the best interests of the child” of the marriage in making a parenting order or a contact order”, and then goes on [at para. 16(3)] to set out a non-exclusive list of factors Courts must look at determining the best interests of the child, including:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) 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;

(i) 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;

(j) any family violence …; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

However, when considering these factors, the Court must still give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being [section 16(2)).

So, does the new Divorce Act really do anything to add clarity to the currently vague principle of what is in the “best interests of the child”? Not really. The new Federal definition simply borrows heavily from existing provincial (Alberta, British Columbia, and Ontario) legislative definitions of “best interests of the child”.

The new Divorce Act aims to update (ie. make more ‘child-focussed’) certain terminology in the current Act (ie. by including terms such as “parenting time”, “parental decision-making responsibilities”, etc.).  But do these more neutral terminologies make these family law principles any clearer and consistent?  Not really.

Calgary Best Interests of the Child Lawyers assist their Clients to understand the general and more specific changes in the new federal Divorce Act, and the many factors and other important considerations that will actually be taken into account in determining what is in the “best interests of the child”.