H. Best Interests of Child

Author:Julien D. Payne - Marilyn A. Payne

Page 541

Where custody and access issues arise on or after divorce, whether by way of an original application or an application to vary an existing order, the court must determine the application by reference only to the best interests of the child.179A trial judge is not bound by a prior interim order and has an unfettered discretion to re-examine the facts for the purpose of determining

Page 542

the best interests of the child.180The "best interests of a child" criterion does not constitute a denial of a parent’s freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms,181nor does it contravene equality rights under section 15 of the Charter.182The "best interests of the child" test has been described as one with an inherent indeterminacy and elasticity.183The "best interests of the child" is a fluid and all-embracing concept that encompasses the physical, emotional, intellectual, moral, and social well-being of the child.184The court must look not only at the day-to-day needs of the child but also to the longer-term growth and development of the child.185What is in the child’s best interests must be examined from the perspective of the child’s needs with an examination of the ability and willingness of each parent to meet those needs.186Although many factors have been identified as appropriate for consideration in custody and access disputes, few attempts have been made to measure the relative significance of individual factors. The outcome of any trial may be largely influenced, therefore, by the attitudes and background of the presiding judge. Three factors have traditionally been regarded as of special importance where, as in most cases, either parent would be capable of raising the child. First, courts have frequently stated that preservation of the status quo is a compelling circumstance as a temporary measure in proceedings for interim custody but it is of less significance after a trial of the issues in open court,187although it may still be important in the latter situation where it has been of long standing.188And an interim or temporary order is significant because it will frequently influence or form the basis for a final order.

Page 543

Once a child has settled into a life or routine with a parent on a temporary basis, the final order will frequently reflect that it is not in the child’s best interests to disrupt or significantly change the temporary arrangement.189As

Pentelechuk J aptly stated in AJU v GSU, "there is no presumption in favour of the pre-trial status quo. Instead the status quo is a factor to be weighed in determining the best interest of the child."190The status quo does not refer only to geographic locations but to relationships and a way of life established for the child.191The status quo that is relevant is that which existed just prior to the parties’ separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.192A second important factor is the strong inclination of courts to grant day-to-day custody of a child to the parent who was the primary caregiver during the marriage.193

However, as Walsh J, of the New Brunswick Court of Queen’s Bench (Family Division), observed in MAS v JSS,194"it does not necessarily follow that because one parent has been a primary caregiver [in the past] that that parent is the ‘psychological parent’ of the child." Furthermore, as Roscoe JA, of the Nova Scotia Court of Appeal, observed in Burns v Burns,195the actual period of time spent with the children is not the only determinant. More important is which parent has taken primary responsibility for all the important decisions concerning the health, safety, education, and overall welfare of the children since the parents separated. In addition to major concerns, the primary caregiver is the parent who deals with the countless less significant but necessary arrangements for the children’s clothing, haircuts, hygiene, extracurricular activities, and mundane affairs such as birthday parties, dental and medical appointments, and attendance at parent-teacher interviews. In NDL v MSL,196 MacDonald J, of the Nova Scotia Supreme Court, formulates an insightful list of questions to be answered in reviewing the nature and quality of a child’s relationship with each parent for the purpose of determining which parent should be given the primary caregiving role. The primary

Page 544

caregiver is of particular importance to very young children, for that is the person to whom children initially form a secure attachment, but the importance of being the primary caregiver decreases with the age of the children.197And

in many two-income families, neither parent can be classified as the primary caregiver because both parents will have been actively involved, though not necessarily equally every day.198A third important factor is the disinclination of courts to split siblings between the parents.199The law not only seeks to foster the relationship between siblings but also between step-siblings.200

It is absolutely vital to keep in mind, however, that in the final analysis, the above three factors will be taken into account only insofar as they reflect the best interests of the children in the overall context of the evidence presented in the particular case. Custody and access cases require an integrated assessment of all relevant factors and circumstances in order to determine the best interests of the child.201With the passage of time, the relevance or significance of any particular factor may change as new attitudes and standards emerge.202For example, the principle under sections 16(10) and 17(9) of the Divorce Act that a child should have as much contact with each parent as is consistent with the child’s best interests now carries very substantial weight in contested custody proceedings.203The views and preferences of children are also an important consideration. On the other hand, religion plays a far less important role than it did many years ago. Although isolated cases may centre upon the religious upbringing of a child,204most custody and access disputes pay little or no attention to religious matters, although ethnic and cultural diversity, including minority language educational rights,205have

Page 545

emerged as a contemporary issue.206However, a child’s racial and cultural heritage that is attributable to one but not both parents is only one factor- albeit an important factor-to consider in determining the best interests of a child for the purpose of granting a custody/access order.207Where no evidence is adduced at the trial to indicate that race is an important consideration, a court, and especially an appellate court, is not entitled to treat the child’s race as of paramount importance in determining which parent shall have custody of the child.208It has been widely accepted by courts across Canada that provincial and territorial statutory criteria of the "best interests of the child" can provide useful guidance in custody cases arising under the Divorce Act.209Given the inherent vagueness of the concept of the "best interests of a child" in custody disputes, some courts have formulated lists of relevant considerations to complement those found in provincial or federal legislation. The following factors have been judicially identified in Alberta210and Newfoundland and Labrador211as relevant to determining the best interests of a child, but they do not purport to constitute a comprehensive list:

· the provision of the necessaries of life, including physical and health care and love;

· stability and consistency and an environment that fosters good mental and emotional health;

· the opportunity to learn good cultural, moral, and spiritual values;

· the necessity of setting realistic boundaries on conduct and fair and consistent discipline in teaching appropriate behaviour and conduct;

· the opportunity to relate to and love and be loved by immediate and extended family and the opportunity to form relationships;

· the opportunity to grow and fulfill his or her potential with responsible guidance;

· to have optimal access to the non-custodial parent in order to encourage and foster a good relationship;

Page 546

· to be with the parent best able to fulfill the child’s needs; and

· the provision of an environment that is safe, secure, free of strife and conflict, and that positively guides the child in development.212Courts in New Brunswick often look to the definition of the "best interests of the child" in the Family Services Act for useful guidance in custody cases arising under the Divorce Act.213It provides as follows:

"best interests of the child" means the best interests of the child under the circumstances taking into consideration

(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or...

To continue reading