FOCUS GROUPS ON FAMILY LAW ISSUES RELATED TO CUSTODY AND ACCESS

MAIN FINDINGS (continued)

DEFINING THE BEST INTERESTS OF THE CHILD

Participants were given a handout that included the following information and task.

ISSUES:  HOW CAN THE LAW DETERMINE WHAT IS "IN THE BEST INTERESTS OF THE CHILD"?

Current Situation

At the present time, the Divorce Act says that judges have to consider the "best interests of children" when they make decisions about parenting arrangements for children after a divorce.  As well, the U.N. Convention on the Rights of the Child states that the best interests of the child shall be a primary consideration in all actions concerning children.  This means that judges can decide who the children will live with and who will make important decisions about the children's health, education and so on.

However, the Divorce Act does not say what criteria judges should use when making decisions on what is in the best interests of the child.

What we would like you to do

On the following page is a list of criteria that judges could use in making these decisions.  First, please read through these criteria, which have been identified as being in the "best interests of the child."

What we would then like you to do is to indicate, from your personal point of view, which of these criteria are:

  1. Most Important for judges to use in making decisions on parenting arrangements.
  2. Quite Important.
  3. Less Important compared to other criteria.

You must put all of the 15 criteria into one of the 3 categories listed above and you must choose 5 to fit into each of the categories.

Criteria
  1. The opportunity for the child to maintain a strong and stable relationship with both parents
  2. The opportunity for the child to maintain a strong and stable relationship with other members of his or her family
  3. The opinions and wishes expressed by the child
  4. The ability of the parent(s) to provide guidance, education, the basic needs and other special needs of the child
  5. The child's cultural and religious background
  6. The ability of the parents to co-operate and communicate with each other on important issues concerning the child
  7. The ability of the child to adjust to the new parenting arrangement
  8. The willingness of the parents to encourage a close relationship between the child and the other parent
  9. A proven history of family violence
  10. Ensuring there is no preference in favour of either parent on the basis of that parent's gender
  11. The quality of the relationship that the child has with the parent(s)
  12. Arrangements that encourage the child's emotional growth, health, stability and physical care at every stage of the child's development
  13. Protecting the child from continued exposure to conflict between parents
  14. The personality, character and emotional needs of the child
  15. The caregiving role assumed by each parent before the breakup.

Prior to discussing their rankings of the criteria, participants were asked the following questions:

  • Is Best Interests of the Child a reasonable approach for the courts to take in determining parenting arrangements?

  • Do you have any concerns that Best Interests of the Child would be the sole factor that would be taken into consideration in determining parenting arrangements?

We will discuss the participants' responses to these two questions first.

IS "BEST INTERESTS OF THE CHILD" A REASONABLE APPROACH?

Everyone agreed that the best interests of the child is a reasonable approach to take in determining parenting arrangements.  Participants supported this view for the following reasons:

  • In situations of conflict, parents are not always objective or capable of deciding on the best course of action regarding parental responsibilities.

  • It puts the interests of children before anyone else's.  As such, the court is seen to be acting on behalf of the children, who have no power or say in the fact that their parents are separating.

  • Using this approach to decision-making is seen to provide the best possibility for stability for children and to provide a safe and secure environment for their emotional and physical growth.

  • This is seen to be a neutral approach, one that is not seen to give preference to either parent.

ANY CONCERNS WITH "BEST INTERESTS OF THE CHILD" BEING THE SOLE FACTOR IN DETERMINING PARENTING ARRANGEMENTS?

No one expressed any concern with this principle being applied by judges and courts in their decisions as the primary consideration.  A universal sentiment expressed was that the needs of children must come first in situations when marital relationships break down and parents, as much as they might have their children's interests at heart, cannot resolve their differences.

After probing, a few participants did state some concerns that parents themselves were of secondary importance; nonetheless, it was in the best interests of the child for the courts to take into account the impact of the decisions on both the mother and the father as well as the extended family.

THE CRITERIA FOR DETERMINING THE "BEST INTERESTS OF THE CHILD"

The following lists the criteria in rank order of importance as assigned by the participants.  Importantly, there is no difference between men and women regarding the top 5 criteria.

Criteria Ranking
12. Arrangements that foster the child's emotional growth, health, stability and physical care at every stage of the child's development. 1
9. A proven history of family violence. 2
1. The opportunity for the child to maintain a strong and stable relationship with both parents. 3
4.The ability of the parent(s) to provide guidance, education, the necessities of life and other special needs of the child. 4
6. The ability of the parents to co-operate and communicate on important issues concerning the child. 5
14. The personality, character and emotional needs of the child. 6
13. Protecting the child from continued exposure to conflict. 7
11. The quality of the relationship that the child has with the parent(s). 8
8. The willingness of the parents to encourage a close relationship between the child and the other parent. 9
3. The views of the child. 10
2. The opportunity for the child to maintain a strong and stable relationship with other members of his or her family. 11
7. The ability of the child to adjust to the parenting arrangement. 12
10. Ensuring there is no preference in favour of either parent on the basis of that parent's gender. 13
15. The caregiving role assumed by each parent during the child's life. 14
5. The child's cultural and religious background. 15

Before we discuss each of the criteria in detail, there are some general observations that need to be made about the overall ranking.

Quite a few participants said they had difficulty in attributing different levels of importance to the criteria because they felt that all 15 on the list were important issues in the consideration of parenting arrangements.

There were different types of criteria on the list-some were broad and general whereas others were more specific, dealing only with one or two aspects of a particular parenting or child-related issue.  Generally speaking, participants said they tended to assign greater importance to the broad general criteria than to the specific criteria.  Their rationale was that the basic idea of the more specific one was already contained in the broad general statement without it being explicitly stated.  This containment principle then drove the relative rankings of the specific items lower in each case.

Below, we discuss specific examples of the relationships drawn between items:

  • Criterion 12 ranked first and Criterion 5 ranked last.

    For most participants the arrangements that would be made (as referred to in Criterion 12) would encompass specific aspects of children's lives such as culture and religion (Criterion 5).

  • Criterion 1 ranked third and Criterion 2 ranked eleventh.

    Access to, and involvement with, extended family (Criterion 2) was important for many participants, but the feeling was that if there is continued regular contact with both parents (Criterion 1), then the extended family would also be a part of the children's lives.

    Some participants also tied in Criterion 5.  If children had the opportunity to maintain a strong relationship with both parents and other members of the family, then they would have regular exposure to their roots and beliefs.

    Most participants felt that if parents were co-operating and communicating with one another (Criterion 6), then each would be encouraging a close relationship between the children and the other parent (Criterion 8).

    Some also tied in Criterion 13 (ranked seventh)-if parents are getting along, then there is no continual conflict between them.

  • Criterion 12 ranked first and Criterion 14 ranked sixth.

    Because parenting plans encompass both the physical and emotional well-being of children (Criterion 12), it was felt that the arrangements that parents proposed would already need to take into account these needs of their children (Criterion 14).

  • Criterion 14 ranked sixth and Criterion 7 ranked twelfth.

    The rationale here was that once parents have taken into account the personality, character and emotional needs of the children (Criterion 14), they have, in effect, to the best of their ability, determined how the child would adjust to the new situation (Criterion 7).

    As well, both these continue to be seen as integral components of Criterion 12 because the arrangements parents plan to make were seen to be child-focused.

Most participants considered Criteria 12 and 4 to be complementary.  These two criteria were seen as connected, albeit dealing with slightly different aspects of parental responsibilities (which we will discuss in more detail later in this chapter).  Generally, participants felt that in parenting arrangements, people should first demonstrate what arrangements they would make for their children.  This takes into account all aspects of their lives now and in the future (Criterion 12) as well as how they intend to carry out these plans (Criterion 4).

There were two criteria that dealt with the gender of the parents, one explicitly (Criterion 10) and one implicitly (Criterion 15).  Both of these criteria show up on the overall ranking as being considerably less important.  Specifically, Criterion 10 was ranked thirteenth and Criterion 15 was ranked fourteenth.

This ranking disguises the fact that most participants had strong feelings about both these items and the role that each should or should not play in parenting decisions.

  • Regarding Criterion 10, the majority of participants felt that the status quo unfairly favours mothers over fathers in the determination of parenting arrangements.

  • Regarding Criterion 15, most held the view that the courts emphasize the caregiving role of each parent during the marital relationship.  This, too, is seen to favour women, more of whom stayed at home with the children.  Participants expressed the view that after a marital breakdown, by definition, roles changed for both parents and prior arrangements were less relevant.

Participants felt strongly that the current perceived gender bias in parenting arrangements had to be removed from the system.  However, they rationalized the lower ranking they assigned to these criteria in the following way.  Many of them chose Criterion 12 and Criterion 4, which deal with the parenting plan and the ability of parents to execute the plan.  These two criteria were seen to afford both parents a level playing field and to remove any presumption that either would be a better parent based on either their gender or their past role in caregiving.

THE INDIVIDUAL CRITERIA FOR DETERMINING THE "BEST INTERESTS OF THE CHILD"

Next, we discuss each of the criteria in rank order, focusing on:

  • What participants felt was important about each criterion.

  • The perceived issues or concerns of participants that affected the relative ranking of importance.
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