Putting Children First – the Importance of a Child-Focused Approach in Family Law Matters

“How do I make sure my kids are going to be ok?”

This is the first thing that parents starting the process of separation and divorce ask me about.

The simple answer is “by putting them first”. 

The more complicated answer is “by creating a parenting plan that is in the children’s best interests”. Parenting plans provide a set of guidelines helping separated parents work together to nurture their child as they grow. The goal is to provide each party with a set of rules that will help them fight less, work together more, and be the best parents possible to their children while living separate lives.

In Ontario family law, there are two things that we consider when making arrangements for children when their parents separate:

• Decision-Making/Custody – who is making major decisions for your children, and what process are we using to resolve disagreements between two parents?

• Parenting Time/Access Schedule – when are the children spending time with each parent, and how often? 

Best Interests of the Child

To answer these questions, Ontario family law has one consideration that overrides all others: the “best interests of the child”. We find references to the best interests of the child in both Ontario and Canadian family law legislation and case law.

But what does it mean, and how do we determine what is in a child’s “best interests”?

A parenting plan that is in the best interests of the child will prioritize the child’s safety, physical, emotional, and psychological well-being above all else – including the preferences of the parents.

Children in separated families have a right to a relationship with both their parents – to the maximum extent that both parents can care for the children in a way that is safe, supportive, consistent, and healthy.

Key elements of determining a child’s best interests are:

• Safety and wellbeing – is the child safe and well cared for while with each parent? 

• Relationships – the strength of the bonds between the children and their parents, siblings, extended family, and community.

• Care History – who was the child’s primary caregiver during the relationship? How stable was the home environment?

• Child’s Preferences – we consider what the child would prefer, often with the assistance of professionals like counsellors or social workers, in the context of their age, maturity, and the circumstances of the separation.

• Family Violence – has there been violence in the family relationship? How did any violence impact the child’s safety, security, and wellbeing?

• Culture and Heritage – the child’s cultural, linguistic, religious, and spiritual upbringing.

• Co-parenting Capability – the ability of the parents to work together, even after separation, to meet the child’s needs (a key factor in claims of parental alienation).

How do we evaluate these factors?

Determination of what is in a child’s best interests is unique to the circumstances of each family. It is a matter of interpretation. It is not uncommon for parents to have completely different opinions about a child’s best interests.

When this happens, there are a number of pathways available to resolve the disagreement between parents:

• direct negotiation resulting in an agreement between the parents;
• alternative dispute resolution, where a qualified third-party professional will assist the parties in trying to reach an agreement; or
• litigation, where the parents will seek the assistance of a judge to make the final determination about how the child should be parented.

A qualified family lawyer will help their client choose the best option. Often, separated parents are able to work together for their children and can resolve matters amicably and at low cost.

In some cases, especially where there are issues of violence, abuse, and control, litigation may be necessary to protect clients and their children.

No matter which pathway you choose, our qualified family lawyers are here to help. We will guide you through the initial stages of planning a schedule, figuring out how you’ll make decisions, negotiating with your co-parent, and if need be, gathering the evidence needed to present your case in a courtroom.

Our goal is to protect your relationship with your children – but more importantly, it is to protect your child’s right to have a relationship with you.

• Jennifer Eensild

This article is authored by Jennifer Eesild an experienced Family Lawyer who is ready to assist you with any questions you may have regarding your separation.

DISCLAIMER: articles provided on this website are intended to provide general information but do not constitute legal advice. We suggest that you consult one of our lawyers if you have a specific legal question or issue.