Canada Court Watch - Family Justice Review Committee
Policy and Position Statements

In matters relating to the best interest of children affected by separation or divorce (Under Public Review)

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Discussion

The phrase “best interest of the child” has been often used by the judiciary and other professions involved in the family court system to justify their decisions relating to a child  without any clear explanation of what this term really means.  Judges, social workers, counselors and custody evaluators, etc., often cite the phrase, “best interest of the child” often make court Orders, recommendations, which upon close examination, are found lacking in consistency and logic.   As a result many biased and one-sided court decisions and reports many inappropriate and sometimes dangerous court decisions are justified under the disguise of “best interest of the child.”

In the spirit of fairness and equality before the law, and in order to eliminate bias, ensure consistency and predictability as well as ensure integrity in the Administration of Justice, the Family Justice Review Committee believes that the term "best interest of the child" must clearly be based on a clearly defined list of criteria that clearly define what must be referred to when determining what is in the “best interest of the child”.  The Family Justice Review Committee feels that clearly defined factors must be established that will form the basis and rationale for any decision or recommendation that affects children of separation or divorce.  The factors should also be based on community values, case law and from input from legal and health care professionals.

Family court judges and all of those working in the family court system involved with the decision-making for children being affected by separation and/or divorce should be  obligated to justify any recommendation or decision they may make using, as many, or all of the following factors which may have relevance in their decision or recommendation.  Note: that the factors are not listed in any order of importance.

It is the position of the Family Justice Review Committee:

Factors that must be considered when determining the child's best interest (where relevant in each circumstance):

1)            The history of the willingness of the involved parties to ensure that the rights of their child as outlined under “The Rights of Children” are protected and the willingness and likelihood of the involved parties to protect the rights of the child in the future.

2)            Previous history of child abuse (physical, emotional, sexual) by any of the parties against any child of the relationship or likelihood of any of the parties to engage in any form of child abuse in the future.

3)            Previous history of child abuse (physical, emotional, sexual) by any member of the child’s extended family against the child or any other child within or outside of the family or the likelihood of any member of the child’s family to engage in any form of child abuse in the future.

4)            Previous history of conflict between the child and any of the involved parties.

5)            Exposure of the child to domestic violence by the parents or members of the extended families, regardless of whether the violence was directed against, or witnessed by the child, as well as the potential risk that the child may be exposed to further incidents of violence while under the care and control of either party.

6)            The willingness and ability of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent and the other parent's extended family, including involvement at the child’s school.

7)            The love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and all persons involved in the care and upbringing of the child.

8)            The capacity and disposition of the parties involved to provide the child love, affection, and guidance and continuation of the education and raising of the child in its cultural and religious heritage.

9)            The capacity and disposition of the parties involved to provide the child with food, clothing, shelter, medical care or other remedial care recognized and permitted under the laws.

10)        The likelihood of exposure of the child to unlawful or immoral influences, either in the home or in the community while in the care of either of the parents or extended family members. Such influences may include such influences such as alcohol, tobacco, drugs, persons of crime, exposure weapons in the home or any other influences of a similar nature.

11)        The capacity and disposition of the each parent to work cooperatively, in a friendly and non-hostile manner, with the other parent and/or other family members towards the best interests of the child.

12)        The potential and likelihood of the parent to abuse the power and control, which would be granted to them, should they be granted sole custody status of the child.

13)        The past history and the likelihood of either parent to engage in parenting behaviors intended to alienate the child from the other parent and the risk of harm to the child that this behavior may cause.

14)        The likelihood of each parent to respect and to comply to the best of their ability, all reasonable orders of the court or any mutual agreement between the parties.

15)        The length of time the child has lived in a stable, satisfactory home and community environment and the importance of this when compared to all the factors which are considered relevant to the best interest of the child.

16)        The capacity and willingness of each of the parties to encourage and maintain a child's relationship with their family and friends.

17)        The capacity and willingness of each of the parties to involve themselves in their child's school.  (Studies have shown that the involvement of parents in their child's school has a direct and significant impact on their child's academic and social skills performance.

18)        The capacity and willingness of each of the parties to involve themselves and members of their family in community activities and events.  It is recognized that a parent's involvement in such activities helps to foster a sense of community and sets a good role model for the child which are important factors in the child's development and future opportunities.

19)        The capacity and willingness of each of the parties families, extended families and friends to support the children by being part of the community support mechanism that will help ensure that the best interests of the child are best protected and that the child’s rights as outlined in the “Rights of Children” are best ensured.

20)        The permanence, as a family unit, of the existing or proposed home or homes.

21)        The moral fitness of the parties involved.

22)        The mental and physical health of the parties or their current spouses as it relates to their ability to provide for the care for the child.

23)        The home, school, and community record of the child.

24)        The preference and wishes of the child, if it is determined that the child is of sufficient maturity and awareness to express preference.

25)        The willingness of each party to reasonably share with the time and costs of transporting the child between the parent's homes considering their ability to do so.

26)        The integrity of the parties having care or influence of the child.

27)        Any past history of collusion by any party or extended family members to conceal abuse against the child or to conceal violations to the rights of the child.

28)        The financial support arrangements as they relate to the best interests of the child as well as the willingness of the parties to negotiate financial support arrangements that promote the best interest and the rights of the child.

29)        The capacity and willingness of each of the parents to work cooperatively and accountably with those in the community who are trying to assist their family resolve their difficulties and ensure that the best interests of the child are being promoted.

30)        The overall level of hostile-aggressive parenting (HAP) demonstrated by each parent as well as the potential of continued exposure of the child to this form of child abuse while in the care of either parent.

31)        The ability and willingness of each parent and their respective families to meet the reasonable financial needs of the child without dependency on outside sources such as government.

32)        Any other factor considered by the community to be relevant to the custody of a child in any particular child custody dispute.

33)        Any other rights of the child or parents as defined and endorsed by the program’s committee which may not be specifically referenced in the above providing that these rights do not conflict with the factors listed under 1 to 29, above, or as defined under the document “The Rights of Children”.