No Matter What: Me and My Family

Article 9 of the United Nations Convention on the Rights of the Child states broadly that children should not be separated from their parents unless required for their own safety and wellbeing. In the case of separation or divorce, where a child’s primary residence must be determined because the parents are no longer living together, such a determination must be made in accordance with applicable laws and procedures. The Convention specifically states that children have a right to stay in contact with both parents after separation or divorce, unless it would be harmful to do so.

A parenting order must above all protect the child’s physical, psychological and emotional safety, as well as their security and wellbeing to the greatest extent possible. Beyond this the law gives the courts some guidance about what should be taken into account when deciding what is in the child’s best interests, but also requires courts to consider each child’s unique circumstances. The factors listed below are some factors the court must consider but the court can also consider anything that may affect the best interests of the child.

The following factors must be considered when determining the best interests of a child...

• the needs of the child based on their age and stage of development, such as the need for stability
  
• the nature and strength of the child’s relationship with each parent and others who play an important role in the child’s life, including siblings and grandparents
• each parent’s willingness to support the child’s relationship with the other parent
• history of care of the child
• the child’s views and preferences, while considering the child’s age and maturity in determining how much weight to give these factors
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
• any plans for the care of the child
• the ability and willingness of the parents and others that would be covered by the parenting order to care for and meet the needs of the child
• the ability and willingness of the parents and others that would be covered by the parenting order to communicate and cooperate, particularly with each other, on matters concerning the child
• any family violence
• any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and wellbeing of the child

And while the courts recognize a parental and legal duty to facilitate the child having a relationship with the other parent, they are also mindful that any ongoing conflict between parents which adversely affects the child must be minimized or avoided. In support of this, and as previously discussed, courts have noted that parental conflict is the single factor which has consistently proven to be severely detrimental to children upon separation or divorce. Finding ways to facilitate comfortable, non-confrontational parenting time is key.