Understanding the best interests of the child test A webinar presented by Pamela Cross, based on content from Aft fter Sh She Lea eaves es Man anual: Supporti ting wom omen Through th the e Fam amily Cou ourt t Proces ess, , a resource published by Luke’s Place Support and Resource Centre available for $35.00 by contacting admin@lukesplace.ca
Objectives This webinar will assist you in understanding the best interests of the child test, which is the test used by courts in determining custody and access arrangements for children. We will examine each of the criteria in the test and discuss evidence a woman can present to support her claim for custody as well as challenges she may encounter.
Disclaimer This webinar provides basic information and not legal advice. It is not a replacement or substitute for legal advice or representation. Any woman considering taking any action in family court should meet with a lawyer if at all possible.
Some resources for women who cannot afford to pay for a lawyer include: Family Law Information Centre (at family court) Family Court Duty Counsel (at family court) Family Law Service Centre Family Court Support Worker 2-hour Family Violence Authorization certificate available from many women’s shelters
What do we mean by custody and access? • Custody refers to the legal decision making responsibility for a child/ren • Access generally refers to time the non-primary parent spends with the child/ren • In law, both parents have an equal right to the custody of their children • This changes if the parents agree on an arrangement or the court makes a custody and access order
Custody, access and violence against women Abusive men often use custody and access as a way to maintain power and control Often important for women with children to move quickly to establish legal custody How custody is determined by the court very important in these cases
Best interests of the child test appears in both the Children’s Law Reform Act (CLRA) and the Divorce Act in this webinar, we will be looking at the best interests test as it appears in section 24 of the CLRA criteria in this test are the only factors the court is allowed to consider when making decisions about custody and access
Best interests of the child test (cont’d) how judges consider these factors is very dependent on the facts of each case considerable discretion for judges in how they weight the various factors
Best interests of the child test (cont’d) Section 24(2) The court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, i. each person entitled to or claiming custody of or access to the child, ii. other members of the child’s family who reside with the child, and
Best interests of the child test Section 24(2) (cont’d) iii. persons involved in the child’s care and upbringing • Who is the child closely tied to emotionally? • Why? • Is the child close to extended family members? • How can the mother’s plan for custody interfere with this as little as possible?
Best interests of the child test (cont’d) Section 24(2) (b) the child’s views and preferences, if they can reasonably be ascertained • Age and cognitive level of child a factor • Children not required to testify or to “choose” between their parents • Role of the Office of the Children’s Lawyer • Judges sometimes talk to children directly, outside the courtroom
Best interests of the child test (cont’d) Section 24(2) (c) the length of time the child has lived in a stable home environment • Focus is on stability for the child, often called status quo
Best interests of the child test (cont’d) Section 24(2) (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child • Not about financial ability • Focus is on parenting ability • Evidence of past parenting very important
Best interests of the child test (cont’d) Section 24(2) (e) any plans proposed for the child’s care and upbringing What are the mother’s plans for parenting in the future? • Education, recreation, health care, religious upbringing, • contact with father and extended family Court is looking for stability and maintenance of the • status quo
Best interests of the child test (cont’d) Section 24(2) (f) the permanence and stability of the family unit with which it is proposed that the child will live Stability and maintenance of the status quo • Courts don’t like to see either parent already living with • a new partner (g) the ability of each person applying for custody of or access to the child to act as a parent
Best interests of the child test (cont’d) Section 24(2) This is where evidence of violence can be raised • (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application Parental applications trump those by others, including • other family members, as long as other best interests factors are met
Best interests of the child test (cont’d) Section 24(3) 24(3) A person’s past conduct shall be considered only, (a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent For example, having had an affair is not itself relevant in the • best interests test However, family violence, past as well as present, is relevant •
Best interests of the child test (cont’d) Section 24(4) 24(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child
Best interests of the child test (cont’d) Section 24(5) 24(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse • These are relatively new factors in the test, passed into law in just 2006 • Woman should provide detailed evidence of abuse, both before and after separation
Best interests of the child test Section 24(5) (cont’d) • Important for court to know if the violence is escalating or changing in nature • Evidence should show impact of violence and abuse on woman and children • Section 24(5) provides protection when woman uses force in self-defence or to protect a child
Additional resources After She Leaves Manual: Supporting Women Through the Family Court Process, Luke’s Place Support and Resource Centre, $35.00, admin@lukesplace.ca
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