Understanding Best Interests of the Child

The Legal Definition

The Best Interests of the Child (BIC) is a primary factor by which living conditions and custody arrangements are determined in cases of familial breakdown. If you know someone who has experienced family law proceedings, it is likely that they will have heard the phrase a multitude of times prior to the stamping of a divorce decree.

While the phrase has made its way into colloquial terminology and is often mentioned loosely with regards to the creating of parenting plans, the actual definition of the term is lesser known.

Ontario’s Children’s Law Reform Act defines BIC as follows:

Best Interests of Child¹Children’s Law Reform Act, RSO 1990, c C.12, s 24(2) <http://canlii.ca/t/534v9#sec24subsec2> retrieved on 2018-06-18

(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, including a parent or grandparent, 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

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(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;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

In determining custody and access, Canadian law does not give inherent favour to either parent. Rather, the courts assign weight to what circumstances will most benefit the child. Judges consider factors such as precedential familial relationships, the child’s preferences, stability, willingness to care for and educate, parenting ability and closeness of the biological or adoptive relationship. Case law has gone on to set further precedent, illustrating what types of custodial applications may or may not ultimately prove successful.

What this means for parents who are splitting up is that the issues behind your divorce or the breakdown of your relationship won’t necessarily determine how parenting arrangements unfold. Unless there is cause for concern over a child’s safety, it is viewed in the best interest of the child for each parent to be involved in as much of a capacity as circumstances allow for. Parents are encouraged to set aside their personal differences and work together to build a cohesive co-parenting relationship. It is in this vein that Canadian courts are increasingly trending toward the granting of joint custodial awards and shared parenting time in recent years.

Application of Best Interests of the Child for Parents Undergoing Separation and Divorce

The best interests of the child is not only a legal concept, but it is a reminder to parents undergoing a divorce or familial breakdown to reclaim focus over the issues at hand. It is far too easy to become caught up in the conflict of a divorce, succumbing to emotional stress and anger towards a former spouse. As their parents navigate separation agreements, children more often than not, become caught in the middle.

Adhering to the best interests of the child means not only determining what custodial circumstances will best suit a child, but how a parent conducts oneself throughout the divorce process and beyond. Parents must realize and keep at the forefront of their minds the manner in which they conduct themselves. Do not underestimate the power of maintaining a respectful tone and manner with your co-parent during transfers. Consider foregoing control and not arguing over what rules the other parent might have set in their home. Likewise, it means not belittling your child’s other parent when speaking about them. So long as your children are in an emotionally and physically safe environment in each home, your children must be given the opportunity to demonstrate respect and love for each of their parents.

The best interest of the children may often clash with what a parent feels is in their own best interest as an adult. Divorce and the changes that accompany it are often difficult to endure. As some mothers and fathers find themselves for the first time not seeing their children on a daily basis, others transition to the responsibility of having to shoulder parenting single-handedly. Whatever new circumstances a parent finds themselves having to undertake post-separation, the focus must remain an objective one, stepping outside of oneself in order to determine what their child truly needs in order to grow and thrive as they live out their parents’ decision to divorce.