What are the best interests of the child?
This article is part of a series addressing popular topics and questions clients and the public may have about the legal profession.
Family law deals with legal disputes that are unusually multi-faceted, says Christopher Deeble, a lawyer at Nelligan Law. Just one divorce can involve a dispute over the terms of a domestic contract, parenting schedules, spousal support, division of property or equalization of the value of the family property. “And all of that has to get sorted out before you can divorce,” he says.
The various layers involved in any file make it difficult to predict outcomes, says Deeble, a family law lawyer, accredited family mediator, and certified collaborative practitioner.
“In some areas of family law, the sex or the gender of the parties doesn’t really play much of a role,” he says. “Gender or sex of the person isn’t going to be a big deal in figuring out how to divide the couch and the kitchen table.”
“But some of the other areas I mentioned, they do carry with them cultural values and expectations that might be aligned with gender or sex.”
There is a myth that courts prefer mothers in child custody disputes – and it exists because it used to be accurate, writes Stacy Rocheleau in an article for the law firm Right Lawyers. Divorce became socially acceptable at a time when society strictly defined gender roles. Fathers were expected to work, and mothers were expected to look after the children. If there were a separation or divorce, the mother would always get custody, and the father would not seek it. Fathers would not even get custody when the mother died, writes Rocheleau, because, in those situations, the father would send the children to relatives.
“In the rare cases where a father requested custody, the judge would rule in [favour] of the mom. Why? The judges were mostly men and didn’t see child-raising as a proper role for a father.”
Rocheleau adds that this patriarchal attitude subsided as women entered the workforce and men assumed more active parenting roles, and laws giving women preferential custody rights no longer exist.
The myth that family law courts favour mothers may have arisen because while Canadian laws are meant to be gender-neutral, those applying them can be affected by the cultural values and expectations associated with sex or gender, says Deeble.
“We have to remember that judges are people. They’re not machines. And they make decisions based on their lived experiences.” He adds, “in my personal experience with the courts, I have found judges to check their bias at the door.”
Deeble recently had a “particularly rewarding experience” of a judge operating unbound by any bias associated with traditional gender roles. The case involved an infant, still in the breastfeeding stage, who was moved from Ottawa to Peterborough, Ontario, without the consent of the child’s father.
The mother sought an order in Peterborough to make her the primary parent, responsible for major decision-making.
“I think that she expected to be given special treatment on the grounds that the infant was breastfeeding,” he says. “Her lawyer might have even expected that to be the case.”
But the judge found that it was a mistake for the mother to bring the application in Peterborough because Ottawa was the child’s jurisdiction. The judge also determined the mother was trying to gain litigation advantage by moving and waiting for the first court date, which could have been a year down the road.
The judge transferred the case back to Ottawa. To prevent the mother from arguing that breastfeeding required the child to stay in Peterborough, the judge ordered the mother to provide the father with pumped breast milk.
“It’s pretty significant that an elderly male judge was sufficiently experienced, himself, to appreciate that breastfeeding wasn’t a no-go zone,” says Deeble. “Breastfeeding merely meant that we needed to have a workaround. And breast pumps have existed for over half a century, I’m sure.”
According to Ontario’s Children’s Law Reform Act, under s. 24(1), when making parenting or contact orders regarding a child, the court “shall only take into account the best interests of the child in accordance with this section.” The section says that in considering a child’s best interests, primary consideration should be afforded to their physical, emotional and psychological safety, security and well-being.
When parents dispute over custody, courts will consider the child’s need for stability, the child’s relationship with each parent, each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, the history of care of the child, and the child’s views and preferences.
Where two parents enter court, each expecting they have an equal or better chance of being made primary parent, Deeble says they should reflect on how parents divided duties before they got to litigation. Suppose a parent has not been getting the child up in the morning, making breakfast, taking them to school, picking them up, taking them to doctor or dentist appointments and other activities. In that case, it is likely unrealistic for that parent to expect a judge to rule it is in the child’s best interests that they be made primary parent, he says.
“If you had a division of responsibilities where you were the person who went to work, and the other person was the one who did the child-rearing, then don’t expect that to be reversed all of a sudden, just because you’ve separated,” says Deeble. “Because it’s more important for the child to have continuity and predictability.”
Family law contains a spectrum of dispute resolution, with varying contentiousness, says Deeble. Parents may work out a settlement without a lawyer in one circumstance. Or, they may have a negotiation, guided by lawyers, or use collaborative family law where lawyers are contractually bound to “work together, instead of working against each other,” he says.
Mediation is further along the spectrum, where a neutral interlocutor will help the couple design separation terms in a contract without taking sides. Then, the most contentious is litigation in court.
While some may find it counterintuitive, says Deeble, litigation provides parties the least amount of control of the outcome among all the options.