COLUMN: The best interests of the child: Who decides and how?

This column is submitted by Fall River Law.

One of the key things that we look out for as parents is the best interests of our children, so it is no surprise that when a question about parenting time (or custody) comes before the court that the best interest of the child is also the primary consideration.

There are a few ways that the legal system is changing to centre the conversation around children. One of these changes includes altering the language we use. You may have noticed that the above paragraph uses the words “parenting time”.  This language is replacing the language of custody and access. By changing the language of the conversation we take away the connotations of ownership that the word custody carries, and instead use a term that puts the interests of the child at the centre of the conversation.

Now I know what you are thinking, changing the language is all well and dandy, but I want to know what it all means for me in my situation. Here are a list of factors that the court will consider.

The Best Interests of the Child factors are laid out below (emphasis added):

• The child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into account the child’s age and stage of development;
• Each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the other parent or guardian;
• The history of care for the child, having regard to the child’s physical, emotional, social and educational needs;
• The parenting plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educational needs;
• The child’s cultural, linguistic, religious and spiritual upbringing and heritage;
• The child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age and stage of development and if the views and preferences can reasonable be ascertained;
• The nature, strength and stability of the relationship between the child and each parent or guardian;
• The nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person in the child’s life;
• The ability of each parent, guardian or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child; and
• The impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed…
• any relevant civil or criminal proceeding relevant to the wellbeing of the child (Divorce Act only as of March 2021)

Factors a) – j) are currently in place in the Nova Scotia Parenting and Support Act. Some variation of a) – k) have been added to the federal Divorce Act, with some additional factors in the case of relocation as of March 2021. 

While these are the factors the court will consider when making a judgement, the reality is that if a parenting time/custody question is before the court it is very, very difficult to predict the outcome in most situations.

This is because the determination of what is in the best interests of the child is so specific to the set of facts in each case. The weight given to each factor is also dependent on the factor’s relevance within the facts of that specific case. This specificity creates uncertainty. I will do my best to explain why.

As you may know, lawyers look at past cases and legal rules to help us advise our clients on possible outcomes when they bring the matter before the court. We look for cases that have similar facts to the one that we are looking at.  When we find a case we assume consistency of treatment, meaning if this was the outcome once, then this same thing will have the same outcome again. It never fits exactly, but lawyers still rely on this assumption of consistency and piecemeal a number of cases together that have similar facts to one situation or another in order to try to figure out the possible and probable outcomes of a case.

However, even though there is this list of factors, not every factor is given the same weight and no single factor is determinative. The Court has the flexibility to give more or less weight to each factor according to how relevant they feel that factor is to achieving the best interests of the child in that specific case. So, the consistency that lawyers usually rely on in previous cases is distorted because certain facts can be the same between several cases, but they are treated differently according to the weight given to the factors in the case. This makes the outcomes of the question of best interests of the child very unpredictable. The factors can give us direction, but not certainty.

But thankfully going to court is not the only way to resolve issues related to parenting arrangements of kids. Kitchen table negotiations, mediation and collaborative family law all keep that decision of what is in the best interests of the child in your hands. In a situation where we have reasonable and responsible parents there is no need to leave that decision to a third-party Judge. No one knows the facts of your situation like you do.

Another aspect of best interests of the child that is served by coming to a parenting agreement outside of court is the emotional or psychological aspect. We have all heard about the impacts that a messy court proceeding can have on kids. When making an argument in court about parenting time and why you may be the ‘better’ parent, you are very likely going to say negative things about the other parent, and vice versa. The truth of the matter is that if you end up with a shared parenting situation then you will have to continue to communicate and work together when raising your children, even when you are no longer together. Any negatives said in the court proceeding will often affect that communication, and therefore your ability to make decisions together. Not to say that it is impossible to move past, but it is another hurt that needs to be addressed.

On the other hand, mediation, collaborative family law or a similar approach requires communication and decision making done cooperatively. In using these approaches, communication will be facilitated and you will be given strategies and tools on how to communicate and make decisions together.

When you come out with a parenting agreement you will already be a step ahead with those tools and strategies, ready to co-parent as it may be. With collaborative family law or mediation, you can make sure that the best interests of the child are served and will continue to be served because as parents you will be able to keep those interests as central.

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