What really is in the best interests of children?

When Jody (all names have been changed) left her partner, Dave, she took the kids, who were 8 and 4 years old, and figured that was all she had to do. After all, she had always been the one to take care of them. Dave had beaten her up both times she got pregnant because he did not want to have children, and he hardly spent any time with them after they were born.

Jody was completely shocked when she got served with court documents from Dave, in which he made a claim for custody of the children, alleging that she had abducted them from him and was denying him his legal right to be a parent. He said it was in the best interests of the children for them to live with him.

Jody is not alone in finding herself caught up with a family law problem unexpectedly, with little understanding or knowledge of what the law has to say about children and families.

It’s the law

In Canada, all custody and access decisions about children are made using the best interests of the child test (known as the BICT to those of us who work with it all the time).  The legislation in different parts of the country sets out the test in different ways. In Ontario, the BICT appears in the Children’s Law Reform Act. Section 24(2)

It sets out a detailed test containing a number of factors that judges must consider when making a decision about custody and access.

There may be a tidy list of factors, but the judge has the discretion to decide how much weight to give each of them, which means there is still a lot of variation in how the legislation is applied.

Where does violence fit in the test?

Perhaps the most challenging element in terms of interpretation is the provision dealing with violence within the family. Not quite important enough to be one of the eight factors in the BICT proper, family violence appears in section 24(4). It requires the court to consider whether a person seeking custody of or access to a child has at any time committed violence or abuse against a spouse, a partner, the other parent of the child, a child or any member of the family’s household.

There are at least two important things to understand about this requirement which is, without a doubt, an important one. (Section 24(4) was only added to the BICT in 2006; before then there was no statutory requirement for judges to consider violence in the family when making custody and access decisions. Many did, but there was no legislation requiring them to.)

First, it is only one element of the many that the judge must consider. To return to Jody’s situation, even if the judge believes her evidence that Dave has been abusive to her, this does not mean Dave won’t get joint custody or extensive access The judge will consider whether or not Dave’s abuse of Jody, taken in the context of all the other elements of the BICT, is serious enough to limit his role as a parent, as well as whether Jody’s behaviour in taking the children away from Dave was justified.

Second, there is an unwritten and largely unacknowledged belief by many family court officials, including judges, but also including mediators, lawyers, parenting coordinators, clinicians, assessors and others, that the ideal outcome for children when their parents separate is for both parents to be closely and cooperatively involved with the children.

Can co-parenting work?

Even parents who have separated with a minimum of rancour and no history of abuse have to work hard to make co-parenting function well for their children. My daughter and her former partner are an example of this: both were very involved as parents before separation and wanted to remain so after they separated, both were and are committed to their separation having as little impact as possible on the kids, both have decent communication and problem solving skills. They make it work, but it is work– hard work — that requires each of them, on a regular basis, to set aside their own emotions towards the other so they can focus on what the kids need.

But for a woman like Jody, the friendly parenting culture of family court is not welcome. She needs a BICT, in law and in interpretation, that believes and understands her story of abuse and that realizes co-parenting is just not a viable option when one parent is prepared to use physical force and/or emotional intimidation to get what he wants.

A better model?

British Columbia’s legislation goes farther than Ontario’s: its Family Law Act includes a broad definition of family violence and has eliminated the terms custody and access, replacing them with parenting responsibility, parenting arrangements and parenting time, in an attempt to eliminate the competitiveness that often accompanies a fight over custody, where there are perceived winners and losers.

Part 4 of the Act includes the best interests of the child test, in which the requirement to consider family violence is directly embedded. There is also a requirement that the court consider the appropriateness of making a parenting arrangement that requires the parents to cooperate. Presumably, when a mother can demonstrate to the court that her partner uses threats, intimidation and/or physical abuse to get what he wants or when he does not get what he wants, this will suffice to eliminate co-parenting from the possibilities.

The legislation contains a detailed test for assessing family violence as well as a list of factors that would justify a parent denying parenting time to the other, regardless of what a court may have ordered.

This legislation is still relatively new, so it may be too early to assess its effectiveness. And, of course, if lawyers, judges and others aren’t educated about the realities of violence within families, their interpretation of the legislation may still lead to poor outcomes.

However, this is a best interests of the child test that creates a strong framework within which good decisions about children could be made for all separating families, not just those where there has been violence.

It is a direction in which other jurisdictions, including Ontario, should consider moving.

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