Rights of Children in Family Law
The best interests of the child are the only consideration for a parenting or contact order under the Divorce Act. Under Alberta's Family Law Act, that rule applies to proceedings under its parenting Part except proceedings about whether a parent is a guardian.
The Best Interests of the Child Are the Only Consideration, and Safety Leads
Both Acts make the best interests of the child the only consideration, each in its own words. Under the Divorce Act the court takes into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Under Alberta's Family Law Act, in all proceedings under the parenting Part except proceedings about whether a parent is a guardian, the court takes into consideration only the best interests of the child.
Both Acts put safety first, and each does it in its own words. The Divorce Act makes the child's physical, emotional and psychological safety, security and well-being the primary consideration when the court weighs its list of factors. The Family Law Act requires the court to ensure the greatest possible protection of the child's physical, psychological and emotional safety.
The Child's Views: Two Different Tests
A child's views are something the court considers. They are not the decision.
Under the Divorce Act, the court considers the child's views and preferences, giving them due weight with regard to the child's age and maturity, unless those views cannot be ascertained.
Under the Family Law Act, the court considers the child's views and preferences to the extent that it is appropriate to ascertain them.
A child's views are weighed among the relevant factors; they do not determine the outcome alone.
The Divorce Act's wording connects age and maturity to the weight the views carry. It does not set an age at which a child's views take over, and it does not say how much weight any particular age attracts. A child who is old enough to explain what they want is a child whose views the court weighs with regard to their age and maturity — not a child who decides.
What a Guardian Must Do as a Child's Capacity Grows
Alberta's Act speaks to this outside the courtroom as well as inside it.
A guardian exercising any of the powers the Act lists — day-to-day decisions and the daily care and control of the child, deciding where the child lives, decisions about education, consent to health-related treatment, deciding who the child lives with and associates with, and the rest of that list — must exercise them in a manner consistent with the evolving capacity of the child.
Among the responsibilities of guardianship is to nurture the child's development and to guide the child towards independent adulthood. And in assessing what a child needs, the factors that make up the best interests of the child take the child's age and stage of development into account.
So Alberta's Act treats a child's part in those decisions as something that grows, and it does so without fixing any age.
The Child's Safety, and Family Violence
Family violence is a factor under both Acts, and each carries its own apparatus.
Under Alberta's Family Law Act, family violence includes behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member. This includes forced confinement or sexual abuse. It also includes causing the child or another family or household member to reasonably fear for their safety or another person's safety.
For this provision, family violence does not include:
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The use of force against a child as a means of correction by a guardian or person who has care and control of the child, if the force does not exceed what is reasonable under the circumstances.
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Acts of self-protection or protection of another person.
The Family Law Act has its own definition, and it is an inclusive one — it says family violence includes the behaviour it goes on to describe. It excludes two things: the use of force against a child as a means of correction by a guardian or a person who has the care and control of the child, if the force does not exceed what is reasonable in the circumstances; and acts of self-protection or protection of another person.
Alberta's Act also sets a standard of proof for that factor: where family violence is being considered among the factors that make up the best interests of the child, its presence is to be established on a balance of probabilities.
Who Has to Protect a Child From the Dispute
The Divorce Act puts this on the parties themselves. A party to a proceeding under that Act must, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding. A person to whom parenting time or decision-making responsibility has been allocated, or who has contact with the child under a contact order, must exercise it in a manner consistent with the best interests of the child. And a party filing a document that starts or answers a proceeding certifies that they are aware of those duties.
Under Alberta's Act, guardians must use their best efforts to co-operate on issues affecting the child, and must give each other information about the child on request.
How a Lawyer Helps
A family lawyer can explain which Act your matter is under and what that Act's factors actually require, set out how the child's views fit into the analysis on your facts, and advise on the guardianship powers and duties that apply to you between court dates.
The framework these factors sit inside is set out in parenting time after separation.
How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.
Talk to THEBIL Law
Contact THEBIL Law to discuss your child's situation and the questions you want to address. The consultation request form can be submitted at any time, and the office makes contact to arrange a meeting.
THEBIL Law is a family law firm in Calgary at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada.
Call 403-457-3128.