In decisions rendered by Judges and Justices in Alberta and across Canada in making a parenting order or contact order for a child of separated married spouses, the Divorce Act, RSC 1985, c 3 (2nd Supp), provides that Courts shall take into consideration only the best interests of the children of a marriage.
When the Court is making a parenting order or contact order for a child of unmarried separated partners in Alberta, the Family Law Act again provides that the Court shall take into consideration only the best interests of the child.
Naturally, a common source of conflict for separating parents is determining what parenting arrangement would be in the best interest of their child(ren).
Recently adopted changes to the Divorce Act have provided married parents with new guidance in considering the best interests of children. Pursuant to Section 16(3) of the Divorce Act, in determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Separating parents should review the factors listed in Section 16(3) of the Divorce Act to assist them in determining what parenting arrangement may be in the best interests of their children. Given the expansive list contained in Section 16(3), parents need to be mindful that a Judge or Justice will consider all of the factors listed, but some of the factors may be more relevant for some families than others depending on their circumstances.
The best interests test is a highly fact driven analysis, which is why it is important for parents to be aware of the factors listed in Section 16(3) of the Divorce Act. When parents do not agree on their parenting schedule and responsibilities, they need to be prepared to show why the parenting arrangement they are seeking is in the best interest of their children, and not simply what they desire as parents.
At Family Central Law Office LLP, we can assist you in obtaining a parenting order that is in your child’s best interests, and we can help to effectively manage the litigation process for you. To learn more about your rights and the legal services we provide, please contact us today for a free consultation with one of our experienced family lawyers by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
