The "best interests of the child" test is the cornerstone of child custody and access law in Canada. But does it achieve its intended purpose? Whose interests does the custody and access regime actually serve?
By Janice Mucalov
One legal doctrine has dominated parental disputes involving the custody, access and welfare of children over the past 20 years: the "best interests of the child" principle.
It's not only a Canadian test legislated in the federal Divorce Act and most provincial statutes; it's also an international standard. The United Nations Convention on the Rights of the Child, to which Canada is a signatory, states that "in all actions concerning children ... the best interests of the child shall be a primary consideration."
But while the test prevails virtually everywhere in Canada, it's not universally acclaimed. Critics say it's too subjective, that it requires judges to rely on personal assessments, biases and values.
The criticism may be valid. A family court judge is faced with two lawyers in the courtroom who represent the best interests, not of the child, but of their paying clients. Who's there to help judges decide what's in the best interests of the child? How are we to figure out what those best interests are? And are we really making the right decisions?
Whose best interests?
Jennifer Cooper, a partner with Deeley Fabbri Sellen in Winnipeg and chair of the national CBA Family Law Section, suggests there's evidence that the legal system serves the convenience of clients rather than the best interests of children.
She recalls one separated couple who decided they'd move in and out of the family home and have the children stay put, rather than having the kids shuttle back and forth between two homes. "But after a year, they quit," Cooper reports. "My client said it was horrible! Never knowing where your purple sweater is, or whatever.
"Yet this," she points out, "is what we ask of children all the time.
"And it's getting worse for them, with the trend toward spending increasing time with the secondary parent," Cooper adds. "We can get 7-, 8- and 9-year-olds to move readily, but when they become teens, they don't want to schlep back and forth anymore.
"We're meeting the needs of parents to bond with their kids and spend quality time with them, but are we necessarily meeting the needs of the children?"
Another troublesome issue that affects kids' best interests relates to the impact of the child support guidelines on custody decisions known as the "60/40 Rule."
Currently, once a parent has the care of children 40% of the time or more, that parent isn't required to pay the mandatory amount specified in the child support guidelines under the Divorce Act. Consequently, many secondary parents often dads push for custody for 40% of the time.
"[The rule] represents a negative force," says Eugene Raponi, a mediator with Waddell Raponi in Victoria and past chair of the CBA's Family Law Section. "It forces non-custodial parents to look at child care arrangements that ignore the best interests of the child and focus instead on the best financial results. For custodial parents, it means they might want to restrict access so they don't lose any child support." Whose interests are served by that?
Finally, the "mobility" cases where one parent is transferred or moves to another part of the country or the world are particularly tough for kids. The Supreme Court of Canada confirmed not long ago in Gordon v. Goertz that, again, the "best interests of the child" is the only consideration in deciding on custody.
But here, both the non-custodial parent and the child lose much more than when everyone lives in the same place. Courts don't have the right to prevent parents from moving, and in today's mobile society it's unlikely they should even try, if the move enables the parent or family to do better.
Then there's the question of who should pay for the transportation costs of the parent left behind. "The present child support guidelines don't assist very much," says Raponi. "Perhaps the father should pay less support if it's expensive for him to exercise access as a result of the custodial parent moving away. Or perhaps the parent that moves should pay the other parent's transportation costs."
In these and other hot-button custody and access cases, it seems most of the arguments center around the parents and their wishes. One could argue that the "best interests of the child" test, in reality, amounts to little more than lip service.
Is it even a "test"?
Family law practitioners do point out that few custody cases actually get to trial, perhaps just one to two percent, according to Raponi. Probably another 20% are sorted out early in the litigation process by way of chambers applications, he adds.
"It's usually only the high-conflict cases that end up in court," says Raponi. "The vast majority of Canadian parents resolve things reasonably well."
But when the case isn't settling and the best interests test must be employed, it can be open to critics who say it's unacceptably subjective and unpredictable. As a "test" a consistent yardstick by which cases can be justly resolved it fails miserably, its critics say.
Peggy Walden, a lawyer with Foster Wise & Walden in Calgary and chair of the CBA's Southern Alberta Family Law Section, says the test "doesn't really get applied until you go to court." Up until then, she charges, lawyers don't actually focus on what would be in the child's best interests.
Lawyers don't really use tests such as "best interests" in daily practice, Walden insists. "We advocate our client's position until we get to where we can find a middle line, or one parent caves in. It's a court test not a practical test."
"But the test can't be more predictable, unless it prioritizes certain factors, and that can be harmful," argues Marilyn Bongard, Legal Counsel with the Family, Youth and Children Section of the Department of Justice in Ottawa.
Each case is different, and it's difficult to come up with general propositions that fit the unique characteristics of every family and child. "The reality is that it requires a fact-driven analysis," says Justice Catherine Aitken of Ontario's Superior Court, herself a former family law practitioner.
"There are a huge number of factors to look at, and the importance of each has to be weighed in every case," Justice Aitken says. "I see it as a delicate process of trying to determine with the input of experts, if available a living arrangement that may work as well as possible for the particular child at that point in his or her life.
"And that process is always under review, as custody and access orders aren't written in stone," she adds. "What may work at one point in the child's life may have to be modified or massaged later on."
Perhaps most importantly, however, calling the test the "best interests of the child" is a way to remind everyone involved in the custody case that it's the child, not the biological parents, whose perspective matters.
"For that, it's useful," asserts Bongard. "The best interests' test sends the message that we need to focus on the child's needs, not parental rights."
Searching for solutions
Unlike most provincial statutes that list numerous factors to be considered, the Divorce Act currently offers no specific guidance in determining the best interests of the child. But a special joint House of Commons-Senate Committee on Child Custody and Access, created in 1997, aimed to change all that.
The committee heard from over 520 witnesses at 55 public hearings and studied hundreds of briefs and letters from individuals, organizations and experts, including a brief from the CBA's Family Law Section. In December 1998, the committee released its report, titled For the Sake of the Children.
One of the report's key recommendations was that the Divorce Act be amended to include 14 specific criteria to illuminate the simple "best interests of the child" directive and help judges decide the best living arrangements for children of divorcing parents.
The 14 criteria endorsed by the CBA's Family Law Section include such factors as the strength of the child's emotional ties with each parent and other family members (including grandparents), the child's views and preferences, any history of family violence by either parent, and the child's cultural ties and religious affiliation.
The joint committee also heard recommendations to add presumptions to the Divorce Act. "There was a lot of pressure, mainly from fathers' groups, to add a mandatory joint custody presumption," notes Bongard. Its supporters argued that it would help overcome any unfair advantage to women in parenting disputes caused by gender bias.
But the committee's report also noted that many women's groups advocated strongly that the Divorce Act should endorse the primary caregiver of children. This, it was argued, would best reflect the pattern whereby women perform most of the functions associated with caring for children in intact families.
The committee chose neither side, rejecting the notion of presumptions and echoing the views of the CBA. The association's submission to the committee said the CBA did "not believe that there should be either a primary caregiver presumption or a presumption of joint custody in the Divorce Act.
"Every family is unique," the CBA said. "Courts must retain discretion to deal with the facts of each case, without the confines of presumptions."
Pros and cons
A specific criteria list in a revised Divorce Act could help harmonize the Act with provincial statutes that do list some criteria, and could greatly benefit those involved with custody and access cases trying to determine what's in kids' best interests. "People in society resolve their disputes in the shadow of the law," Raponi observes.
"A couple who are separating will have regard to what's in the Divorce Act. It's a bit of a crib sheet for the population at large."
Some observers, however, say that changing the law won't have much impact on how parents actually resolve disputes about their kids. Most judges already know what factors are considered important in resolving custody and access, and use them when making their decisions.
Raponi also notes that, in any event, good family lawyers try to steer parents and children away from litigation whenever possible. "Because of the conflict created, litigation, by definition, isn't in the child's best interests."
Whether any legislative changes will actually make a difference is a question that won't be answered for a while yet. In its response to For the Sake of the Children, the federal government said that any amendments to the Divorce Act won't be made until 2002.
Next May, Parliament will receive the results of a comprehensive review of the Divorce Act's child support guidelines. Legislative amendments to the custody and access provisions likely will be integrated with changes proposed to the child support guidelines.
Expert assistance
In the meantime, when parents disagree, judges and lawyers turn to child development experts to help them reach decisions aimed at meeting the best interests of the children involved.
Cooper says she's noticed a real change in the use of such experts since she started practising 20 years ago. "When I started, we didn't have psychologists doing expert reports unless the child or parent had psychological problems," she says. "Now, when there's no easy resolution, reports are commonly used and help promote settlement."
Typically, both parents agree to hire a particular psychologist who talks to the parents, the child and others who know the child, such as teachers, doctors and neighbours. In other cases, the court might order a family evaluation. If the parents can't pay, free assessments by court social workers are available in many parts of the country.
"The helping profession can be very useful in assisting the court as experts and in helping parents understand the impact of the separation on the kids," says Raponi. It's especially so when the expert's evaluation or assessment is thorough and thoughtful, adds Justice Aitken.
Moreover, as Cooper notes, psychologists in Canada are ethically bound to remain independent, unlike in the U.S., "where each parent arms themselves with their own assessors, who battle each other in court.
If the psychologist has conducted a proper assessment, they will have seen both parents with the child and gained an insight into the family that the court cannot gain."
She estimates that, in Winnipeg, about 80% of the cases that go to assessment settle after that. "Part of the reason is that the parties feel heard and have confidence in the assessor's judgment," she says. "There's also a feeling that the court will likely follow the recommendation of the assessor."
In many cases, this happens to be true, confirms Justice Aitken. But observers say that's neither a bad thing nor an abdication of the court's responsibilities.
Retaining a psychologist increases the odds that the child's best interests will be determined and met, says Walden. "A psychologist meets the parents in a more relaxed environment, whereas the artificial atmosphere of the courtroom can be very stressful," she observes. "Without the help of an expert, all the judge has to go on is how the parent testifies in answer to questions."
In fact, psychologists are probably better equipped than lawyers by reason of their training and the contact they have with the parents to come up with the best recommendations for looking after children of divorce, she adds.
More recently, another professional has also been gaining popularity in family law the children's lawyer or advocate. In Ontario, when requested by the court, the office of The Children's Lawyer (formerly the guardian ad litem) acts for children caught up in custody wars. There are 21 staff lawyers in Toronto, plus an additional 365 lawyers across the province who work on a fee-for-service basis.
Another 13 staff social workers, plus others on contract, are also on hand to provide social work investigations. Last year, the office was embroiled in 2,500 custody/access files, all high-conflict cases.
The role of the children's lawyer is to represent the interests of the child and advocate the best position for that client, says Wilson McTavish, who heads up the office as The Children's Lawyer. The appointed lawyer gathers information about the child and meets with him or her to determine the child's views and preferences.
But while the lawyer will advise the court of the child's wishes, the lawyer won't necessarily advance the child's views if that isn't considered the best arrangement for the child.
"Having a children's lawyer adds strongly to the decision-making process," notes McTavish. "We provide an independent voice, apart from that of the parents, and can offer an objective view of the evidence and the child's wishes."
"They reinforce the idea that we're really looking at what's best for the child," Justice Aitken adds. "When they put evidence before the court, they keep bringing it back to the child, instead of focusing, for example, on the negative attributes of the other parent."
Other approaches
Outside the courtroom, services that offer less adversarial approaches to disputes over children with many positive results are probably more helpful than any legislative change in determining what really serves children best.
Mediation, for one, is strongly endorsed. In fact, in Quebec, couples must attend a mandatory mediation information session before any court hearing involving custody, access rights or child support. At the end of the session, the couple can choose to attend up to six free mediations.
Another supported service is the delivery of parent education programs. Usually jointly run by lawyers and social workers, these programs help divorcing and separating parents to cope with the emotional effects of splitting up and to work together in continued co-parenting.
Manitoba's Family Conciliation Services, for example, offers two three-hour seminars. The first seminar covers new partner issues, communication between parents and with children, and the effect of conflict on kids. In the second seminar, warring couples in high-conflict situations learn about a low- to no-contact approach to their future communications.
And Marilyn Bongard recently sat on a Family Mediation Canada advisory committee that studied the results of parenting education courses. The study found a very high satisfaction rating among parents who attended. For kids, Saskatchewan and Manitoba offer education services aimed at helping children cope with their parents' separation or divorce.
Next steps
What all this means is that although family law practitioners recognize the limitations of the "best interests" test and the adversarial system in which it operates they're doing what they can to ensure children's interests are served in the end.
"Our systems are in development," Cooper agrees. "It's an evolving process to make the courts more responsive to children's needs."
Finding solutions that meet the needs of divorcing parents and their kids won't be easy. But the best interests of children will likely be realized with a continued trend toward greater involvement by fathers, more emphasis on parental education, and especially, less emphasis on an adversarial approach.
"The whole adversarial court system is inherently flawed for children," Walden says. "It's not the best system for determining what to do with children's lives."
It's far better, she believes, for parents to retain control of the decision-making process and reach a mutually agreeable arrangement through mediation or negotiation, rather than to give up control to the courts, which must ultimately impose an arbitrary decision.
Justice Aitken reflects: "Where I hope a lot of energy goes is to supporting services that will assist parents in the role of parents, such as addiction counselling, anger management programs, separation counselling and parenting programs services that directly or indirectly will foster the overall health of the family.
"There'll still be cases where, for one or more reasons, matters cannot be resolved by the parents and a court will have to make a decision. In those circumstances, I don't see how we can move away from a focus on the best interests of the children."
Janice Mucalov is a lawyer and writer based in Vancouver.
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