Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support

Part 1: Parenting after Separation or Divorce (continued)

BEST INTERESTS OF CHILDREN

Further Reading

Focus Groups on Family Law Issues Related to Custody and Access, S.A.G.E. Research Group

Family laws in Canada are based on the principle of the "best interests of the child." Those people making decisions that affect children during and after separation and divorce must take the children's best interests into account.

Some, but not all, provincial and territorial laws list specific factors that parents are to look at when making decisions about their children. These factors include children's ages, special needs, relationships with the important people in their lives, the role of extended family, cultural issues, the history of the parenting of these children and the future plans for the children.

Currently, the federal Divorce Act does not set out factors that parents should consider when determining the best interests of children. Some people think that it should. A list of factors might educate people about the things that they should consider when making decisions that affect children.

There are varying opinions on this issue. Some say that listing factors would not increase the predictability of outcomes nor decrease litigation. In fact, in comparing jurisdictions that have a list of factors with those that do not, there is little real difference in the types of orders issued. Adding a few key factors could be helpful, but having too many might be too long and difficult to be useful.

This section looks at whether adding factors to the section of the Divorce Act that covers "best interests of the child" would be helpful and, if so, what those factors could be.

Looking at the Law

Do you think that adding factors to the "best interests" section of the Divorce Act would help people make decisions about children that are in the children's best interests?

  • Yes
  • No

Why?

If yes, please check the 10 factors from the list below that you think are most important in helping people make decisions that are in the best interests of children.

Factors Related to the Children Themselves

  • Children's age and stage of development
  • Children's health
  • Children's special needs
  • Children's cultural, ethnic, and religious or spiritual background
  • Children's views and preferences
  • Children's personalities and abilities to adjust to the new way their parents have arranged to care for them
  • Children's current and future educational requirements

Factors Related to the Children's Relationships with Others

  • Relationships with siblings
  • Relationships with parents
  • Relationships with other members of the family
  • Relationships with any person involved in the children's care and upbringing
  • Relationships with the community

Factors Related to Parenting of the Children in the Past

  • History of the parenting of the children
  • Past conduct of parents that is relevant to their parenting abilities (including violence and abuse in intimate relationships)

Factors Related to the Future of the Children

  • Ability of parents to meet ongoing and developmental needs
  • Ability of parents and other involved people to co-operate
  • Potential for future conflict
  • Potential for future violence affecting the child

Please describe in your feedback booklet any other key factors that you think would help people make decisions that are in the best interests of children.

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