When it comes to separation and divorce, the rights and best interests of the children should always be at the centre of the process. I was once that child whose parents went through a separation and custody dispute. Let me tell you, my memories of that process are not pleasant ones. Now, as a practicing family law lawyer, I have a better understanding of what was going on during that time and how the law and lawyers involved were working to protect my rights as a child caught in the middle of a separation. If your family is going through this process, you might be wondering what the term the best interests of the child means under the law.
Best Interests of the child – A child’s rights perspective
“What will be in the best interests of the child?”
The question above and its answers are a large component of any family law issue that involves children’s rights in separation. For parents, the answer to this question is going to vary in all sorts of situations and might be a source of conflict when co-parenting. Keep in mind that the law looks at the principle of the best interests of the child on a case-by-case basis while keeping a few fundamental factors in mind.
In Manitoba, it is The Family Maintenance Act that outlines the context of the child’s best interests. It lists the following paraphrased factors that the court will take into consideration:
- Nature, quality and stability of the relationship between children and parents
- The child’s physical, psychological, educational, social, moral and emotional needs
- Impact on the child of any domestic violence
- Parents’ ability and willingness to communicate and co-parent
- Any special needs of the child
- Proposed plans for the care of the child that takes into account safe living situations
- The history of the care arrangement for the child
- Effect on the child on any disruption of the child’s sense of continuity
- The views and preferences of the child when it’s appropriate
- Child’s cultural, linguistic, religious, and spiritual upbringing and heritage
While a judge interprets the above factors in divorce cases that go to court, in the collaborative practice setting, parents have a more influential role in determining what’s best for their children. As collaborative law professionals, we support parents to make decisions keeping in mind that while their children are not always in the meetings, their presence is always in the room. Everyone involved must consider the child’s rights and best interests throughout the agreement process.
The Child’s Preferences and Consent
As children get older, the law in Manitoba gives more consideration to the child’s preferences and wishes in family matters.
For example, in private guardianship and adoption cases, children over the age of 12 must be provided with independent legal advice on their rights. In adoption matters, the young person may even be required to give their consent.
In litigation proceedings, a judge may order an assessment (or a less extensive but similarly useful process). The assessor observes day-to-day family life and speaks to the child about their relationship with the parents. If the assessment reveals that the child wants to spend equal time with both parents or has a preference for one home over the other, the court will consider these findings.
While from a child’s perspective it can feel as though everything in their parents’ separation is beyond their control, there are provisions in place for the court to hear their desires when it is appropriate.
Changes to Canada’s Divorce Act
Changes are coming to Canada’s Divorce Act in 2021 that aim to shift problematic assumptions about children that historically have viewed them as the “property” of parents.
For example, when referring to the parents’ time with their child, the new act moves away from words such as custody and access. Instead, the language in the reformed act reflects the parental responsibilities to the child by using terms such as parenting orders, decision-making responsibility, and parenting time. These changes convey that children have rights and interests of their own in a separation. These reforms will set the foundation for how parents separate and what co-parenting relationship will look like going forward.
As someone who was once a child in the middle of separating parents, and is now a practicing family law lawyer, it makes me happy to know that the law and committed lawyers are at work to protect the interests and rights of children. I’ll be keeping these considerations top of mind as I build my practice.
By Alyssa Bird
If you have questions about this post or collaborative law in general, contact me today at [email protected].