Best Interests

What Is the Best Interests Test?

In family law, the concept of the "best interests of the child" is the foundation for decisions regarding child guardianship, parenting time, and decision-making responsibilities. Courts use this standard to ensure that the child’s physical, emotional, and psychological well-being is the top priority.  This is the paramount consideration that Courts will take into account when making a decision for children, and it is of the utmost importance that applications brought in Court regarding children address these factors. 

When is the "Best Interests of the Child" Test Applied?

The "best interests" test is applied to all children, regardless of whether or not their parents are married.  For married parents, the test may be found under Section 16 of the Divorce Act.  For unmarried parents in Alberta, the test may be found under Section 18 of the Family Law Act of Alberta.

This legal framework is used whenever a Court is called upon to decide on matters such as guardianship and parenting time, ensuring the child’s needs are always at the front.

Key Factors Considered

When determining the best interests of a child, the Court evaluates several factors related to the child’s safety, stability, and overall development. These factors include:

(a)    Physical, Emotional, and Psychological Wellbeing: The Court will seek to make a decision that facilitates the child living in a stable, comfortable environment, where the child’s healthcare and other needs are provided for.

(b)    History of Care Provided: The Court reviews which parent has primarily cared for the child and the quality of that care, and both parents’ historical and ongoing involvement in the child’s life. 

(c)    Plans for the Child’s Future Care: Each parent's ability to meet the child's educational and healthcare needs is considered, as well as the parent’s ability to facilitate the child’s relationship with the other parent. 

(d)    Cultural, Linguistic, Spiritual, and Religious Upbringing: The Court assesses how a decision may impact the child’s ability to participate in their cultural or religious community.

(e)    The Child’s Views and Preferences: Depending on the child’s age and maturity, their preferences may be considered, though this is not the deciding factor.

(f)     Relationships with Significant People: The Court looks at the child’s relationships with parents, siblings, and other important relations, and how those relationships may be impacted by the Court’s decision.

(g)    Willingness to Cooperate: The Court considers whether one or both of the parents have demonstrated an ability to set aside their differences with the other parent and work together for the child’s well-being. 

(h)    Family Violence or Abuse: Any history of abuse or violence is seriously considered in making decisions, as exposure to family violence seriously threatens the safety of a child. 

Ultimately, the goal of the “Best Interests” test is to create the most stable and supportive environment for the child's growth and well-being.  The emphasis on this test demonstrates how the Court takes a child-focused approach to making decisions.

If you are a parent going through a separation in Alberta, you should speak to a lawyer about how the “best interests” test may apply in your case.  Contact us to book a consultation with one of our experienced family law lawyers. 

WHAT IS A SEPARATION AGREEMENT?

A separation agreement is a binding legal document that outlines the terms of a separation, regardless of whether you were married or living together in a common-law relationship, and whether or not you have children. It addresses critical areas such as:

• Child custody and support

• Determining living arrangements and financial responsibilities

• Division of property and finances

• Splitting assets, debts, and determining spousal support if necessary.

By putting verbal agreements into writing, a separation agreement removes uncertainty and reduces the likelihood of future disputes. A separation agreement must be drafted to reflect both the current and future needs of the parties involved.

Creating a Separation Agreement and When You Should Contact a Lawyer:

You should contact a lawyer as soon as you are considering entering into or drafting a separation agreement, especially if you own property, or have children.   You should also contact a lawyer if you have recently separated from your spouse to discuss whether a separation agreement might be right for your situation.  

It may be beneficial for you and your partner to collaboratively discuss terms of initial agreement together.  Then, if you cannot agree or are not sure about certain issues, your lawyer can help you resolve those issues in a manner which is agreeable to both parties.  Your lawyer can also help you to determine whether you have addressed all of the necessary and relevant issues, including things that you might not think of at first, like implications to a family business, or how to deal with spousal support if you and your spouse have significantly different incomes. Drafting and negotiating a separation agreement is often more cost-effective than proceeding with your matter to Court.  Court cases are time-consuming and costly, and often bring about increased conflict between parties. Choosing a separation agreement, drafted by an experienced lawyer, can provide you with a clearer, less stressful way forward.

Why Involve a Lawyer?

In order for your separation agreement to be legally binding and enforceable, you and your former partner will each require independent legal advice (also called “ILA”) from your own respective lawyers.  Lawyers can help with the finer details and catch any issues you might miss, saving you from potential legal headaches later and ensuring you are aware of your rights and obligations.

A thoughtfully drafted separation agreement has a significant impact on your future, influencing everything from your living arrangements to the care of your children. It is essential to take the time to fully understand the terms of your agreement and seek legal advice to ensure the agreement is thorough, legally enforceable, and reflects your and your partners’ wishes.  Reach out to one of our family lawyers today and take the first step toward creating a comprehensive separation agreement – we are here to help you, every step of the way. 

Why Choose Mediation?

If you are facing a legal dispute, you might think court is the only way to resolve it. However, mediation is a powerful alternative that is often more time and cost-effective. Here are a few reasons as to why mediation could be your best option:

1. Cost and Time-Effective
Court cases are expensive and time-consuming, it can involve numerous hearings, expert fees, lawyer costs, and long delays. Depending on the circumstances, it can take months or even years for your matter to reach resolution.  Mediation, however, is typically more readily available, and you can get started on resolving your dispute without lengthy wait times associated with Court process.

2. Less Stressful
Court is formal and adversarial, often escalating tension. In a family matter, emotions are often heightened. Mediation is more informal, and allows for open conversations with a neutral third-party present to help both parties hear one another out and reach an agreeable solution. In the instance that tensions arise during a mediation, a neutral mediator can meet with each party separately (“in caucus”), helping both parties focus on finding solutions and reduce stress, ultimately leading to both parties making better decisions.

3. Preserves Relationships
Mediation fosters communication, which is especially important for family disputes that involve children.  It helps preserve relationships, which is crucial when comes to co-parenting in the long term with your former spouse.  You may think that there is no way you and your spouse could ever work together as co-parents, but you might be surprised at what you can achieve for yourself, and your children, if you have the right mediator helping you. 

4. Confidentiality
Court proceedings are public, whereas mediation is private. Court proceedings being public means that sensitive details about your dispute or your family become part of a public record. In mediation, the particulars of your dispute remain private and confidential.  Mediation allows parties to protect sensitive information and resolve discreetly, keeping your family’s business, your family’s business.

Mediation offers numerous benefits, allowing parties to have more control over the outcome of their case, making it often a better option than Court for resolving family disputes.  Your children benefit from you and your spouse working together to make decisions, and you benefit from a less costly and less lengthy process to resolve disputes.  Mediation can be effective even in situations with very high conflict, and we encourage you to contact our offices to explore how mediation might be the right choice for you.