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We spoke with Gabrielle Pop-Lazic, a Toronto family lawyer with Gelman & Associates, on the subject of the child’s best interests in family law in Ontario.  Please note that this article is intended as an introductory overview, and not intended to be taken as legal advice. For legal advice regarding a child’s best interests with respect to decision-making responsibility and parenting time, we recommend booking a consultation with an Ontario family law lawyer.

What Are a Child’s Best Interests?

When parents separate, decisions must be made regarding their child(ren)’s care. From where they will live and go to school to matters of healthcare and religious upbringing, the ideal situation is one where the separating spouses can collaborate amicably on a parenting plan. 

Unfortunately, agreement is not always possible. In Ontario, two (2) pieces of legislation provide governance over decision-making responsibility and parenting time (formerly known as “custody and access”). The federal Divorce Act oversees decisions connected with a divorce, while the provincial Children’s Law Reform Act can address decision-making responsibility and parenting time when parents have not been married. 

The children’s best interests have always been the test for any parenting decision. However, what a parent decides to be in the child’s best interests may not necessarily align with a Judge’s opinion. Under the Divorce Act, the Court’s considerations when determining the child’s best interests may include:

  • Each parent’s ability or willingness to encourage the child to have a good relationship with the other parent
  • The children’s needs given their specific age and stage of development, as well as any particular individual circumstances
  • The need for stability in a child’s life
  • The nature and the strength of the child’s relationship with each parent;
  • The siblings, grandparents, extended families, etc.
  • The history – who has historically been the child’s primary caregiver?
  • The child’s views and preferences
  • And more

The Importance of Focusing on the Child’s Views and Preferences

The child’s views and preferences regarding a parenting plan are part of a Judge’s consideration in determining their best interests, but obvious consideration must be given to the child’s age and whether the child is mature enough to understand the implications. A court may give more or less weight to a child’s views and preferences depending on their age, their level of maturity, and similar factors.

Every child is different, of course, and individual needs will be considered. For children who may be on the autism spectrum, or have Aspergers, for example, change may be particularly difficult. Taking this factor into consideration may lead to a particular set of arrangements.

In a shared parenting schedule, where the child is more or less splitting their time evenly between both parents, the question may be – what is tolerable for the child, given their age and stage of development? With younger children, for example, it is preferred to have shorter but more frequent transitions between parents. As the children get older and are able to adapt to longer absences from each parent, the plan will likely change.

The Role of Family Violence in Decision-Making Responsibility and Parenting Time Determinations

Family violence will always be considered when making decisions regarding parenting plans. If the child is exposed to violence between the parents, this will certainly raise concern in the context of family law.

An incident of violence does not necessarily mean that a parent will not be permitted to have parenting time, nor that they will be required to have supervised parenting time. There has to be a consideration as to the nature, seriousness, and frequency of the violence. This may include whether the violence was against the other parent or against the child, whether it was witnessed by the child, as well as whether the outcome of the violence resulted in or put the child at risk of physical, emotional, or psychological harm.

In the expanded definition of family violence, we are not only looking at behaviours that might lead to criminal charges. The Divorce Act recognizes that acts of coercion, financial control, and more may also constitute a form of family violence.

The Impact of Shared Parenting Arrangements on Child Development and Well-Being

Separation is not necessarily negative for children. Seeing their parents model constructive communication in a shared parenting arrangement can be a powerful lesson, as can the opportunity to practice independence and resilience early on. While there is discussion as to the merits of shared parenting arrangements in providing that model of collaborative guardianship, the fact remains that shared parenting is not always possible. 

A shared parenting arrangement may not be the best choice if the parents are unable to communicate, or if a parent is not able to realistically spend their allocated parenting time with the child. Another issue is one of proximity – in order for a shared parenting schedule to work for the child, the parents have to live within close proximity to one another. The child may thereby stay close to their community, their friends, school, activities, and so on, regardless of whose home they inhabit. Where practical reasons make this impossible, shared parenting may not be in the best interests of the child.

If you have any other questions concerning the child’s best interests in connection with decision-making responsibility and parenting time in Ontario, or would like to discuss the particulars of your specific case, contact us to schedule a consultation with Gelman & Associates today.

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