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When a married couple decides to end their marriage it inevitably impacts both parties.  When a couple of file for divorce, the parties that are impacted with little or no say in the matter are the children.  This is where the courts step in to ensure that the children have a strong voice and that all matters are dealt with while keeping the best interests of the child in mind.

What Does ‘The Best Interest of the Child’ Mean?

The Family Law Act requires all decisions that involve children be made in the child’s ‘best interests’.  In fact, all family laws are based on this principle. The question is, what does that mean?  Simply put, decisions are to be made with the intention of having the best possible outcome for the child.  The Family Law Act also, requires that judges and law enforcers ensure the safety of a child emotionally, physically and psychologically.

What Factors Do the Courts Consider?

At this point in time, the federal Divorce Act does not stipulate the exact factors for determining what is best for children.  The reason for this is how unique each case actually is and the fact that listing factors does not increase the predictability of the outcomes in court.  There are, however, many factors that are considered to determine the ‘best interest of the child,’ even if they are not formally outlined in the Act:

  • the child’s perspectives
  • the child’s own history
  • the child’s cultural, religious and spiritual upbringing
  • the benefit to the child by developing a strong relationship with both parents
  • the ability and willingness for the parents to care for the child
  • any family history of violence or abuse
  • any criminal proceedings

How Do Courts Determine the Children’s Perspectives?

Anything that a parent or court will decide can have a direct impact on a child.  There are different ways some courts may use the input of the child in the legal proceedings to help assess their best interests.  Depending on the child’s age and maturity, there is the possibility for them to be heard in any judicial or administrative proceedings which directly affect the child.  This hinges on recognizing that children are not only capable of forming meaningful opinions on decisions that could alter their lives, they ought to be listened to by the powers which seek to protect their best interests.  Of course, the opportunity for them to do this varies depending on the court and the province; however, the two most common options available are:

  • A child advocate or lawyer hired to represent the child
  • A child psychologist who interviews the child and prepares a report about their findings

How Kolinsky Law Can Help: 

Family Law is one area of specialization for the lawyers at Kolinsky Law.  We specialize in all matters related to divorce including custody, child support, child protection, spousal support and more.  We believe that children need their voices heard and we work to ensure that while the divorce process is difficult, the child’s best interests are put above all.