Child Best Interest Test: Parenting In Divorce / Separation Law: Calgary, Alberta
In January 2020, our legislature introduces changes to the Divorce Act which set out and define exactly what a Court will consider when determining what is in the best interests of the child(ren). In Canada the Court has always applied a Child Best Interest test to determine which parent or parents have custody and parenting time. That said, the definition of the Child Best Interest test largely saw creation through Judge made case law. This case law, or common law, was dependent on the facts of each individual case. The changes to the Divorce Act outline exactly what factors a Court must consider when determining what is in the ‘best interests of the child.’ If you face custody issues, we help families like yours. Reach out to the Kahane Law Office family lawyers in Calgary, Alberta for help today.
Factors Courts Consider In Child Best Interest Test Changes
Remember, no change in the underling principal exists. The specific rules for determining the Child Best Interest test, for greater consistency in determining what is in the best interest of the child, will now be codified in law. The changes to the new legislation outline the following factors a Court will consider when determining custody and parenting:
- The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- The nature and strength of the child’s relationship with each spouse, siblings, grandparents and other important persons;
- Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- The history of care of the child;
- The child’s views and preferences;
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- Any plans for the child’s care;
- The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate;
- Any family violence; and lastly
- Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
The Court’s Limitations In Child Best Interest Test Factors
Many people express concerns about limited all situational considerations to a preset set of factors. This is not the case. The foregoing list is not exhaustive. This means that the Court may consider other factors. The Court’s ability to consider other factors remains a part of the Alberta and Canadian child custody and access legal system.
The Court’s Ability To Place More Weight On One Factor Over Another
Judges in Alberta and Federal family law retain much discretion. This factor remains key in determining the Child Best Interest test. What factors specifically a Court considers entirely depends on the individual set of circumstances in each case. No one factor outweighs another. How the foregoing factors apply to your situation when asking the Court to make an Order concerning:
- The custody of your children; and
- With respect to parenting time with your children.
Consequently, everyone should discuss these factors with a family lawyer. The lawyer then works with you to help you determine the best way forward for yourself and your children. The focus always looks at what is in the best interest of the child.
How To Get A Custody And/Or Parenting Order
In order to get before a Court, you will be required to file an Application and Affidavit in support of your Application in the Court of Queen’s Bench of Alberta. While some individuals attempt to navigate provincial court on their own, the Court of Queen’s Bench usually involves lawyers. The reason for this is that the Court system is complicated and overwhelming. Strict rules and evidentiary requirements require following. Failing to do so may result in the loss of your application. The child custody lawyers at Kahane Law help guide you through the Court system. In addition, they help walk you through what evidence best supports you in any application before a Court which deals with the issues of custody and parenting time. This includes everything material to what is in the best interest of the child.
When To Contact A Lawyer After Separation For Custody And Parenting Issues
It is often a good idea to get advice with respect to custody and parenting if you are thinking of separating from your spouse, or as soon as you have separated from your spouse. The decisions you make after separation can have repercussions on custody and parenting in the future, so it is a good idea to get advice as soon as possible.
Cost To Review Your Position In Child Custody
Seeking legal advice and direction often costs less than people think. The lawyers at Kahane Law Office provide consultation appointments so that you can obtain the information early, without the necessity of retaining the lawyer at the end of your consultation meeting. For example, you only pay for the one meeting. You do not pay a retainer nor do you have any further obligations to the family lawyer. It is always best to understand your position to avoid making a situation worse or making your ability to get custody harder. Feel free to contact us to schedule a meeting at any time.
Do Courts Always Have To Order Custody and Parenting Agreements
No. If you and your spouse agree on the custody and parenting arrangements for your children, but you want that Agreement to be papered in a Court Order, the lawyers at Kahane Law Office can help you formalize your agreement in either a Consent Court Order, or Parenting Agreement. This means that a court grants a court order without your attendance in court. These orders remain equally enforceable as those that are heard in a contested child custody application. Agreed upon child custody situations that are in the best interest of the child, cost less and include less stress for the parents. Feel free to contact us to determine which option may work best for you.
Help With Child Best Interest Test Custody Applications
Call today for help in making an application to the courts for child custody or access. We help with all stages of court applications. This includes everything from understanding your position, to the granting of the final order. Great importance exists in getting legal information early in the process. Call us today in our Calgary, Alberta Office at 403-225-8810 (also, toll-free at 1-877-225-8817), or, for a quicker response, email us directly here.