Judges use the “best interests of the child” test when they are making decisions about custody and access. This test is set out in section 24 of the Children’s Law Reform Act as follows:
24(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 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) any plans proposed 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
24(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
24(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
24(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).
Judges determine how much weight each factor is given based on the facts and circumstances of each family, so judicial discretion plays a significant role in how the test is interpreted. This is why it is so important for a woman to provide the court with detailed evidence about her and her partner’s past parenting, her plans for parenting now that she has left her partner, and about the abuse she has experienced.
Not all judges (or lawyers) are well informed about the reality of violence in families. In particular, many do not understand the extent to which abuse and violence continue (and may even escalate) post-separation and the impact this can have on important issues such as custody and access.
Overall, what judges are looking for as they assess the factors in the best interests test is which parent can best maintain stability for the children. Some disruption in their lives is inevitable, but where a woman can show the court that the children can continue to attend the same school, remain connected with friends and extended family (on her partner’s side of the family as well as her own if at all possible), stay in the same extra-curricular activities, etc., that will strengthen her case.
Status quo is another term a woman might hear when the judge is talking about what is best for the children. This just means keeping things as they are now. For instance, if a woman leaves her abuser, taking the children with her, and he makes no attempt to contact her or to see or contact the children for several months, the status quo is that she is the primary parent. On the other hand, if she agrees to share parenting time equally with her former partner on a short-term basis, but that arrangement lasts for several months, then that may become the status quo, and she may have difficulty convincing the courts that changing that arrangement is in the best interests of the children.
You can play a critical role in supporting your client to present the evidence of her abuse in such a way that it helps the judge understand her reality.