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.