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Why do we focus on the best interests of the child?
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Parents, guardians, the court and others who are making decisions about a child must make that decision in the best interests of the child. The Family Law Act and the Divorce Act list factors for the decision-maker to analyze to make sure the final decision is in the child’s best interests.
- A Three-Fold Concept
- International Law
- Canadian Law
- Resources
A substantive right - a primary consideration in actions concerning the child due to the child’s dependency, maturity, legal status and often “voicelessness”; An interpretive principle- if a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen; A rule o...
CRC Article 3(1) - In all actions concerning children,whether undertaken by public or private social welfare institutions,courts of law,administrative authorities or legislative bodies,the best int...
Federal Legislation
Examples of express references to best interests of the child in federal law: 1. Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.), ss. 16(8), 17 -factors (in custody matters) 2. Immigration and Refugee Protection Act, S.C. 2001, c. 27- ss. 25(1), 25.1, 28(2)(c) - humanitarian and compassionate considerations; s. 60 - detention of children ; ss. 67(1)(c), 68(1), 69(2), 167(1), 167(2)-Immigration Appeal Division proceedings 3. Immigration and Refugee Protection Regulations - SOR/2002-227, R. 117(2)...
Provincial and Territorial Legislation
Best interests of the child is contained in many provincial or territorial laws such as family and child protection statues. For example, s. 8 ,Children’s Law Act,1997, S.S. 1997, c. C-8.2 where only the best interests of the child are considered in deciding child custody orders.
Case Law
1. Young v. Young1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (Q.L.) at para. 102 per Justice L’Heureux‑Dubé says the best interests of the child is a child-centric analysis, and “is the positive right [of the child] to the best possible arrangements in the circumstances of the parties”, and should not focus on harm, although the presence or absence of harm may be an important factor. The test is contextual and future focused encompassing a myriad of considerations. It is “person-oriented” rat...
Senate, Children: The Silenced Citizens: Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children, 39th Parl, 1stSess, Issue 89 (25 April 2007) online.Donna J Martinson, “Children’s Legal Rights in Canada under the United Nations Convention on the Rights of the Child(2016)Suzanne Williams, “Legal Hooks and Springboards to Advance Children’s Access to Justice” (2015)Aug 1, 2024 · To determine what is in the child’s best interests when making parenting arrangements, you must consider factors including: The child’s emotional health and well-being; The child’s views, unless it would be inappropriate to consider them; The child’s relationships with parents, guardians, and other important people; The history of care, and
In applying Jordan's Principle, the government must recall and recognize that many of colonization's historical disadvantages and intergenerational impacts were based on a colonial concept of a child's best interests.
Mar 15, 2023 · Which factors affect the child’s best interests? For a court to determine a child’s best interests in Alberta, numerous factors must be considered. The court must assess the circumstances to “ensure the greatest possible protection of the child’s physical, psychological and emotional safety.”
Some tests focus on the absolute best for a specific child, while others focus on choosing between realistic options. Some assert that different approaches to determining the BIC are needed for different contexts, while others promote greater consistency through use of consistent guidelines.
Jun 15, 2023 · Within the Divorce Act, a section outlines the factors considered when determining the best interests of a child. This section dictates that the child’s best interests should be the sole criterion for determining the outcome of child custody and access – which we now generically call “parenting”.
