Best interests of a child the only consideration

Family violence

One of the very unique and helpful sections of the Family Law Act are sections 37 and 38 which deals with, in part, the assessment of family violence.

Lawyers, and other professionals that come within the definition of a “family dispute resolution professional”, will be required to screen for family violence on and after March 18, 2013.

Section 37 mandates that the best interests of a child is the only consideration of the parties and the court and should be read in conjunction with section 38 of the Family Law Act.

When drafting pleadings and affidavit material, the factors set out in Section 37 should be addressed if applicable.

As per section 37 of the Family Law Act, the best interests of a child is the only consideration.

Like section 24 of the Family law Act, section 37 lists various criteria the court considers in the determination of a child’s best interests but there are some additional factors as well.

Section 37 of the Family Law Act reads as follows:

Best interests of child

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a) the child’s health and emotional well-being;

(b) the child’s views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child’s life;

(d) the history of the child’s care;

(e) the child’s need for stability, given the child’s age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

Explanation from the Ministry of Justice

Section 37 carries over and expands s. 24 of the Family Relations Act. In the Family Relations Act, the best interests of the child were the “paramount consideration.” Section 37 directs that, in making decisions about parenting arrangements or contact with a child, a decision-maker must consider only the best interests of the child.

This section expands the requirement to consider the best interests of the child beyond decision-making by judges, to include decision-making by guardians and all individuals party to a child-related agreement. A child’s best interests must always be in the forefront when parenting issues are discussed.

Section 37 provides an overarching direction to “ensure the greatest possible protection of the child’s physical, psychological and emotional safety” and provides a list of factors to consider when determining what is in a child’s best interest. The expanded list modernizes the Family Relations Act to better reflect current social values and research. 

Important changes to the best interests of the child factors include: 

a change in determining whether to consider the views of the child from “if appropriate” in the Family Relations Act to “unless it would be inappropriate”. This change shifts the presumptive starting point: the child’s views will be considered unless there is a reason why they should not be, rather than starting from the position that the views will not be considered unless justified;

inclusion of family violence as a factor. The addition of family violence addresses an important gap in the law and recognizes that violence—even if directed exclusively at the spouse—can still be harmful to a child; and

inclusion of any relevant prior civil or criminal proceedings as a factor. This requires decision-makers to consider the involvement of parties in other proceedings that are relevant to the safety, security or well-being of the child and promotes greater information-sharing between the family, child protection and criminal systems where children are involved.

Commentary

Section 37(1) carries over and expands s. 24 of the Family Relations Act. The best interests of a child is now the only factor to be taken into consideration when making an order or agreement, rather than the prior “paramount consideration”. This section also provides an overarching direction to protect, as much as possible, “the child’s physical, psychological and emotional safety, security and well-being”.

The new factors include the history of the child’s care, the child’s need for stability, and the existence of any civil or criminal proceedings relevant to the child’s safety, security, and well-being. The FLA also provides that the child’s views are a factor, unless it would be inappropriate to consider them. Previously s. 24 of the FRA would include the child’s views only where it was appropriate. The expansion of the list of considerations is intended to modernize the family law legislation to better reflect current social values and research. 

Family violence is also considered in s. 37(2)(g)–(i). This recognizes that family violence, even if not directed at a child, can be harmful to a child. The inclusion of relevant prior civil or criminal proceedings as a factor under s. 37(2)(j) requires decision-makers to consider the parties’ involvement in other proceedings relevant to the safety, security, or well-being of the child. It also promotes greater information-sharing between the family, the Ministry of Children and Family Development, and criminal systems where children are involved.

Sections 37 and 38 of the Act are complementary provisions. Section 37 provides a list of factors that the court must consider when assessing whether a parenting arrangement or contact with a child is in that child’s best interests. Several of these factors specifically address family violence. Section 37(2)(g) states, “the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member”. Section 37(2)(h) states, “whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs”. Section 37(2)(i) states “the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members”. This section expands the consideration of safety concerns beyond the child. It considers the impact of any risks guardians or other family members may face if certain parenting arrangements are ordered. Section 37(2)(j) states “any civil or criminal proceeding relevant to the child’s safety, security or well-being.” This new section highlights a departure from courts focusing only on civil family law matters in exclusion of criminal proceedings that may parallel or impact the family law proceeding. This section now mandates that the court “must” address both civil and criminal proceedings that centre on the issue of the child’s best interests.