Best Interests of the Child and Alberta s Family Law Act

Transcription

1 Best Interests of the Child and Alberta s Family Law Act Prepared by: Leslie MacRae, M.A., Joanne J. Paetsch, B.A., Lorne D. Bertrand, Ph.D., Sheryl Pearson, LL.B., M.S.W., R.S.W. For the 5 th World Congress on Family Law and Children s Rights Halifax, Nova Scotia August, 2009

2 1.0 Introduction The best interests of the child is a fundamental principle that has guided parenting arrangements in Canadian family law since the Supreme Court of Canada ruled in Adams v. McLeod 1 that courts must do what is in the best interests of the child. Given that jurisdiction over Canadian family law is divided, with each of the provinces having jurisdiction over non-divorce family proceedings and divorce proceedings being governed by the federal Divorce Act, the indoctrination of the best interests principle unfolded gradually with the tide of provincial and federal legislative reforms. The principle was first codified in Canadian family law legislation 1978 in the Ontario Family Law Reform Act, which simply stated that either parent may have custody or access of a child in accordance with the best interests of the child. 2 By 1986, consideration of the best interests of the child officially became part of federal divorce legislation, with the then new Divorce Act being enacted to explicitly include the principle. 3 Canada was further influenced in the area of best interests of the child in 1989, when the United Nations Convention on the Rights of the Child (Article 3(1)) stipulated that, (i)n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 4 The Convention (Article 9(3)) more specifically stated the importance of a child s best interests with regard to parental separation, stipulating that State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact 1 Adams v. McLeod [1978] 2 S.C.R Family Law Reform Act, S.O. 1978, c. 2, s N. Bala, The Best Interests of the Child in the Post-Modern Era: A Central But Paradoxical Concept (2001) Spec. Lec. L.S.U.C Best Interests of the Child 1 [hereinafter Bala, 2001]. 4 Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, online: United Nations Treaty Collection 1

3 with both parents on a regular basis, except if it is contrary to the child s best interests. 5 Though Canada ratified the Convention, it was not until a 1999 Supreme Court of Canada decision 6 that the Convention s treatment of best interests took a foothold in interpreting and applying Canadian legislation affecting children. 7 Historically in Alberta, the principle of the best interests of the child guided decisions on applications for guardianship, custody, and access under the Domestic Relations Act, 8 the Provincial Court Act, 9 and the Child, Youth and Family Enhancement Act. 10 The best interests of the child were to be considered a necessary consideration in applications for guardianship and custody/access under the DRA, and one of several considerations in applications for private guardianship under the Enhancement Act. Under the PCA, best interests were considered paramount in consideration for custody and access, and the sole consideration in grandparent access applications. However, though best interests were considered, explicit factors were not listed in the legislation and courts had to rely on case law for determining the best interests of the child. 11 By the early 1990s, Alberta Justice recognized that family law reform in the province was necessary, given the complicated nature of Alberta s family law statutes. Various pieces of legislation addressed family law cases, and there were many inconsistencies and overlap among provisions. The Alberta Law Reform Institute was contracted by Alberta Justice to address these shortcomings in provincial family law. They worked to recommend a sound legislative framework that would modernize, 5 Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, online: United Nations Treaty Collection 6 Baker v. Canada (Minister of Citizenship and Immigration) [1999] S.C.J. 39, 174 D.L.R.(4th) 193 (S.C.C.). 7 Bala, Domestic Relations Act, R.S.A. 2000, c.d-14 [hereinafter DRA]. 9 Provincial Court Act, R.S.A. 2000, c.p-31 (as at September, 2005) [hereinafter PCA]. 10 Child, Youth and Family Enhancement Act, R.S.A. 2000, c.c-12 (version as at September 2005 and version as at January 2008) [hereinafter Enhancement Act]. 11 S. Pearson, Alberta s Family Law Act: A Legislative Review (2008) Canadian Research Institute for Law and the Family [hereinafter Pearson, 2008]. 2

4 rationalize, and consolidate Alberta family law. 12 The result was the Family Law Act, 13 which came into force on October 1, 2005 to address non-divorce matters in Alberta. In addition to the DRA, family law provisions under the PCA, and private guardianship provisions under the Enhancement Act, it replaced a number of other pieces of legislation addressing family law issues in the past, including the Parentage and Maintenance Act 14 and the Maintenance Order Act. 15 Importantly, along with a number of procedural and substantive changes to simplify and improve family law in Alberta, the development of the FLA took special consideration in stipulating the role and application of best interests in family law, adopting a child-centered perspective, and specifying the courts commitment to the best interests of the child when making decisions. Under the new FLA, Alberta courts had to consider a number of factors to ensure the greatest possible protection of the child s physical, psychological, and emotional safety. While the FLA contained no specific provision for evaluation, the benefit of identifying whether the legislation was meeting its objectives was widely recognized. Thus, in 2007, the Canadian Research Institute for Law and the Family (CRILF), with funding from the Alberta Law Foundation, began work on an evaluation of Alberta s Family Law Act. The purpose of the evaluation was to determine whether the changes introduced by the FLA have led to a more effective, efficient, and accessible family law system in Alberta, and whether the substantive changes to such areas as best interests of the child, guardianship, parenting, contact, and support were fair and effective. It is Alberta Law Reform Institute, Family Law Project: The Conclusion (Final Report No. 93, 2004) at 3. Family Law Act, S.A. 2003, c,f-4.5 [hereinafter FLA]. Parentage and Maintenance Act, R.S.A. 2000, c.p-1[hereinafter P&MA]. Maintenance Order Act, R.S.A. 2000, c.m-2 [hereinafter MOA]. 3

5 the evaluation s examination of the FLA s consideration of best interests of the child that will be the focus of this paper. 2.0 Research Design and Methodology CRILF s Evaluation of Alberta s Family Law Act was divided into two phases: (1) a development phase, occurring from April 2007 to March 2008, producing a detailed evaluation framework, including measurement tools and instruments; and (2) an evaluation phase, occurring from April 2008 to March 2009, which involved the implementation of the evaluation framework. Though the evaluation asked a number of general research questions regarding procedural and substantive issues associated with the Family Law Act, this paper will specifically address the following questions relating to best interests of the child: (1) What substantive changes to family law with regard to the best interests of the child were introduced by the Family Law Act? (2) Do these changes represent an improvement over the previous legislative framework in Alberta? (3) How does the Family Law Act s approach to the best interests of the child compare to other jurisdictions? (4) Does consideration of best interests of the child in the Family Law Act ensure the child s physical, psychological, and emotional safety? Though the evaluation utilized a number of methodologies, two main data sources provided information regarding the FLA s consideration of the best interests of the child. First, a detailed and comprehensive legislative and case law review examined a number of key substantive areas of the Family Law Act, and conducted a comparison 4

6 of these areas of the FLA to Alberta s pre-fla legislation as well as to other jurisdictions (Canada and international). Findings from this review will be summarized and discussed. Second, a survey of Alberta professionals who work with the Family Law Act was conducted in the fall of The survey instrument used a combination of open- and closed-ended questions to obtain information regarding the professionals knowledge and opinions of a number of procedural and substantive areas of the FLA. Key professionals were identified with the guidance of the project Steering Committee, and included Provincial Court judges, Court of Queen s Bench justices, family lawyers, mediators, dispute resolution officers, child support resolution officers, 16 mental health professionals, First Nations Legal Services staff, Family Justice Services staff, conflict resolution instructors, judicial clerks, and court administrators. Respondents were also identified in consultation with Alberta Family Justice Services, the Alberta Legal Telephone Directory, and online directories for relevant professional, government, and non-governmental organizations. The survey was ed to a total of 515 lawyers, mediators, Family Justice Services staff, social services and mental health professionals, dispute resolution and child support resolution officers, and conflict resolution instructors, with 56 returned. A total of 142 surveys were distributed by mail to Alberta Court of Queen s Bench justices (n=81) and Provincial Court judges (n=61), with 48 returned. Finally, surveys were sent by via Family Justice Services to judicial clerks and court administrators, with 48 returned. Quantitative survey data were 16 Dispute Resolution and Child Support Resolution Officers are instrumental in the Dispute Resolution Officer and Child Support Resolution Programs, respectively, which are alternative dispute resolution programs in Alberta Court of Queen s Bench for parties proceeding with cases involving child support. 5

7 analyzed descriptively using SPSS, and qualitative data were used to expand on qualitative results. 3.0 Legislative/Case Law Review of the Consideration of Best Interests in the Family Law Act Alberta s Family Law Act, in an attempt to update, simplify, and consolidate Alberta family law, also clarified the scope and substance of the best interests of the child test. Though the best interests test continues to be applied in relation to guardianship, parenting, and contact orders (formerly custody and access), as well as enforcement orders, the FLA more explicitly lists the factors to be considered and the circumstances in which the test must be applied. The legislative review examined both the application of the best interests test and the factors to be considered in determining the best interests of the child, and provided a comparison to the consideration of best interests in other legislation Consideration of Best Interests of the Child in the Family Law Act One issue explored the legislative review was the prioritization of the best interests of the child in consideration of FLA applications. Section 18(1) in Part 2 of the FLA states that the court is to consider only the best interests of the child regarding applications for guardianship, parenting orders, contact orders, and access enforcement. This consideration represents a change in principle from the previous legislative framework, in which best interests were considered exclusively only in applications for grandparent access under the PCA. In applications for guardianship, custody, and access under the DRA, and private guardianship under the Enhancement Act, the child s best interests were one of a number of necessary considerations, but not 17 See Pearson, 2008 for the full legislative review. 6

8 the sole consideration. In applications for custody or access under the PCA, the child s best interests were a paramount consideration but again, not the sole consideration. 18 However, though section 18(1) of the FLA states that the child s best interests are the sole consideration in applications for guardianship, parenting orders, contact orders, and access enforcement, the analysis revealed one inconsistency. Some of the provisions in Part 2 of the FLA (where the best interests of the child are the only consideration) actually specify that the court consider best interests as one of a number of factors. For example, the guardianship provision states that the court must consider three factors in applications for guardianship: (a) the suitability of the proposed guardian as a guardian ; (b) the ability and willingness of the proposed guardian to exercise the powers, responsibilities and entitlements of guardianship in respect of the child ; and (c) whether it is in the best interests of the child that the applicant be appointed as a guardian of the child. 19 Similarly, in consideration of an application for contact, the court must consider a number of factors in addition to the child s best interests before granting the order. Thus, conflicting provisions in Part 2 of the FLA create some uncertainty regarding whether best interests of the child are the only consideration, or one of a number of necessary considerations. 20 In comparison, the review examined consideration of best interests in the federal Divorce Act, 21 the British Columbia Family Relations Act, 22 Ontario s Children s Law Reform Act, 23 and the Civil Code of Quebec. 24 Under the Divorce Act and the Ontario CLRA, best interests of the child are the sole consideration in orders for custody and Pearson, FLA at s. 23(3). Pearson, Divorce Act R.S., 1985, c.3(2 nd Supp.) [hereinafter Divorce Act]. Family Relations Act, R.S.B.C. 1996, Chapter 128 [hereinafter B.C. FRA]. Children s Law Reform Act, R.S.O. 1990, c.c.12 [hereinafter Ontario CLRA]. Civil Code of Quebec, R.S.Q. c. C-1991 [hereinafter CCQ]. 7

9 access, in reference to/accordance with a number of specific factors (i.e., the child s needs, circumstances, means, past conduct, violence, abuse, etc.). In contrast, the B.C. FRA refers to best interests as a paramount consideration, while the CCQ specifies that the court must rule based on two paramount considerations: the child s interests and in respect to his/her rights. 3.2 Best Interests Factors in the FLA Until the FLA was enacted, Alberta s family law legislation (i.e., DRA, PCA) did not list factors to be considered when determining the best interests of the child. An important change introduced by the Family Law Act was the inclusion of an extensive list of factors that must be considered by the court in any determination of best interests, with the latitude to consider additional factors, including reports prepared by qualified professionals (as per the guardianship order provisions in section 23). The best interests provision in the FLA loosely prioritizes these factors by first stating that the court shall ensure the greatest possible protection of the child s physical, psychological and emotional safety and second consider all the child s needs and circumstances, inclusive of a number of specific provisions as follows: (i) the child s physical, psychological and emotional needs, including the child s need for stability, taking into consideration the child s age and stage of development, (ii) the history of care for the child, (iii) the child s cultural, linguistic, religious and spiritual upbringing and heritage, 8

10 (iv) the child s views and preferences, to the extent that it is appropriate to ascertain them, (v) any plans proposed for the child s care and upbringing (vi) any family violence, including its impact on (A) the safety of the child and other family and household members, (B) the child s general well-being, (C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (D) the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child, (vii) the nature, strength and stability of the relationship (A) between the child and each person residing in the child s household and any other significant person in the child s life, and (B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (A) to care for and meet the needs of the child, and (B) to communicate and cooperate on issues affecting the child, (ix) taking into consideration the views of the child s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, 9

11 (x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and any civil or criminal proceedings that are relevant to the safety or wellbeing of the child. 25 The review examined several notable themes among these factors. First, with regard to past conduct, the FLA updated Alberta s family law legislation so that only past conduct that had direct implications for the safety and well-being of the child could be considered. This is in contrast to the former provisions under the Domestic Relations Act, which provided generally that past conduct of parents could be considered in custody and access applications which often included questions of fidelity and other marital issues. Thus, the FLA demonstrates an improvement over the previous legislation in that marital issues unrelated to the safety and well-being of children cannot be contested in applications regarding children. 26 More specifically, the FLA provides that family violence which includes violence perpetrated by any family or household member 27 to the extent the presence of it impacts a child s safety, well-being, and the ability of the person engaged in the violence to care for the child, must be considered. This is an important development in Alberta family law as the comparative component of the review revealed that, while some pieces of legislation in some jurisdictions (e.g., British Columbia Family Relations Act and the federal Divorce Act) allow for limited consideration of past conduct, and the Ontario Children s Law Reform Act authorizes the consideration of family violence in the context of past conduct and only if relevant to the ability of the person to parent, Alberta FLA at s. 18(2b). Pearson, FLA at s. 18(3). 10

12 is the only jurisdiction to explicitly include family violence as a factor that must be considered as part of the best interests test (Pearson, 2008). The review also pointed to the presumption of maximum contact as an important consideration in best interests analyses. Though the Supreme Court of Canada ruled that it is in the child s best interests to maintain maximum contact with both parents unless there is evidence to the contrary, 28 the FLA does not explicitly state maximum contact as a best interests factor. Though the FLA does direct the court to consider the development and maintenance of meaningful relationships with each guardian and the nature, strength and stability of relationships between children and others, maximum contact is not presumed to be in the child s best interests. Though a presumption of contact has been considered as part of the best interests test with regard to contact orders, relationships with parents is only a consideration under the best interests analysis. As revealed in the review, this stands in contrast to the Divorce Act, which explicitly states that maximum contact with each spouse is in the best interests of the child. 3.3 Summary The consideration of best interests of the child in the FLA represents a noticeable improvement over Alberta s previous legislation. Though the best interests test is not new to Alberta family law, the FLA is more explicit in stating its scope and application, stating the factors that the court must consider in determining the child s best interests. The review demonstrated that the meaning and application of the best interests test is similar across Canadian jurisdictions; however, the FLA s explicit treatment of family 28 Young v. Young [1993] 4 S.C.R. 3 (S.C.C.). 11

13 violence as one of the factors to be considered as part of the best interests test does set Alberta apart from the rest. 4.0 Survey of Professionals The survey of professionals asked a number of procedural and substantive questions regarding their opinions and experiences with the Family Law Act, most notably, their substantive knowledge of the previous legislative framework in Alberta and their views on the FLA s treatment of best interests. More specifically, professionals were asked questions about the factors to be considered as outlined in section 18(1), the treatment of each factor, and whether the FLA affords children better protection than other pieces of legislation (i.e., the federal Divorce Act). Responses were coded and analyzed both quantitatively and qualitatively. 4.1 Sample Characteristics A total of 152 respondents completed the survey. As shown in Figure 1.1, a majority of the respondents worked in areas related to court administration (e.g., Family Court Counsellors, Caseflow Coordinators, judicial clerks/court clerks, Family Justice Services staff). Nearly one-third of the respondents (31.6%) were Provincial Court judges or Alberta Court of Queen s Bench justices, and just under one-quarter (21.1%) were lawyers. The remainder of the sample represented other professions such as psychologists, psychiatrists, social workers, mediators, and consultants. 12

14 Figure 1.1 Respondents' Profession Other (n=10) 6.6% Lawyer (n=32) 21.1% Court Administration (n=62) 40.8% Judge/Justice (n=48) 31.6% Source of data: Survey of Professionals. Total N=152. A majority of respondents worked in the major centres of Calgary (27%) or Edmonton (31.6%), with nearly 30% working in another city. An additional 11.8% of respondents worked primarily in rural Alberta. Equal proportions of survey respondents reported that they work in Provincial Court (34.4%; n=52), Court of Queen s Bench (32.5%; n=49), or both courts (33.1%; n=50). Over two-thirds of the respondents (68%; n=102) reported working in the area of family law for more than five years. A further 11.3% (n=17) had 3-5 years experience, 17.3% (n=26) had 1-3 years experience, and only five respondents (3.3%) reported working in the area of family law for less than one year. When asked if they were familiar with Alberta s Family Law Act and/or its associated processes and procedures, almost all respondents (98%; n=149) reported 13

15 that they were. The three respondents who were not familiar with the FLA were asked to end their surveys at that point. 4.2 Best Interests of the Child Table 1.1 summarizes the quantitative data produced from the survey with regard to the treatment of best interests in the FLA. Professionals were first asked whether the consideration of the best interest factors listed in the FLA protects the best interests of children. An overwhelming majority of respondents (94.1%) said that they did. When asked why they thought this was the case, 45 respondents provided 46 comments. The most frequently given comment (n=24) was that the best interests criteria provided in the FLA was a very comprehensive and well thought out list. One respondent commented: Yes, and having them articulated in the legislation was a progressive and modern approach to legislating in this area miles ahead of the federal Divorce Act. Other respondents commented that the considerations take into account the entire well-being of the child and the complete understanding of the child s life is required to best serve their needs. Some professionals (n=3) pointed to the benefit of listing specific factors, but noted difficulty in their practical application. As one professional noted, these are platitudes and are easy to agree with but hard to implement. Further, one respondent expressed concern over the potential for bias as a result of the factors listed, stating that a working single mother would lose to paternal or maternal grandparents every time. Recognition that a natural father and mother are presumed to be the best people to raise children is needed. 14

16 Does consideration of the best interest factors in the FLA protect the best interests of children? Should emphasis be placed on some best interest factors over others? Is outlining best interest factors for consideration in the legislation more beneficial than a broadly defined consideration of best interests? Does the FLA afford children better protection than does other legislation to ensure the child's physical, psychological and emotional safety? Source of data: Survey of Professionals. Total N = 152. Table 1.1 Respondents' Opinions of Whether Substantive Changes to the FLA Protect the Best Interests of the Child Questions Yes No Total n % n % n % Respondents were further asked whether emphasis should be placed on some best interests factors over others; their opinions were somewhat less positive. Just over one-half (56.6%) of respondents stated that some factors should be emphasized over others. When asked why or why not, 85 respondents provided 95 comments. The most common comment (n=36) was that some factors should not be emphasized because judicial discretion in weighting of factors is appropriate and that each situation is unique and cannot be reduced into a base formula. Respondents commented: Each scenario needs to be looked at on a case-by-case basis. I don t believe there is a black and white way to look at parenting and what is best for the child. That is why we don t have just one parenting arrangement that everyone follows. That is why things need to go to trial sometimes, and even better to go to mediation because then the parents can talk about what is important for their children and what should be the emphasis. I think the emphasis may be different in each case, depending on the circumstances of the child and his family and the court should have the discretion to determine which to emphasize. Perhaps the section should make it clear that the court does have that discretion not to place equal value on each aspect. 15

17 The second most commonly provided comment (n=17) was that some factors should be emphasized because physical and emotional safety is sometimes overshadowed by less pressing concerns. As one respondent stated, issues of family violence and the emotional and psychological well-being of the child should be placed first. Another respondent commented: I believe that they should all be considered, however, I do believe that immediate risk of emotional damage or physical/psychological effects from situations must be looked at first and foremost then factors such as school, cultural, spiritual, etc. Sort of like Maslow s hierarchy the immediate needs first safety, food, clothing, emotional harmony, then the self actuating values. The third most common comment (n=16) was that emphasis should be placed on some best interests factors depending on the unique circumstances of each party. As one respondent noted, All of the areas listed are important, but it could be that the history of the child s care may be outweighed by other significant safety concerns. Another respondent stated, Each situation is different and fact-driven. A factor that is relatively unimportant in 99% of cases I hear might, because of the unique circumstances, be of primary importance and perhaps determinative of the situation. Other respondents commented: To decide a weighting in advance does not allow the court and parties to focus on the specific needs of the child in question. For child support we abandoned the individual justice model in preference to the uniform justice model. This would be a grave mistake in issues involving custody or parenting of children. Regardless of the value placed upon any best interest statement, they all contribute to a child s well being and development. Domestic violence is a huge concern, but so is a child s view/opinion of who they feel can meet their needs. 16

18 When respondents were asked if outlining specific best interests factors for consideration in the legislation is more beneficial than a broadly defined consideration of best interests, three-quarters (75%) of respondents indicated that it is more beneficial. When asked why or why not, 80 respondents provided 84 comments. The most common comment (n=45) was that it is beneficial to outline specific factors because it gives structure and a set of considerations and that it would be too general and subjective without a specific list of factors to consider. As one respondent stated, these situations are so comprehensive to consider that such a listing is helpful to ensure that nothing is being left out. Another respondent elaborated: I believe that specific best interests listed along with the ability to enter other best interests as the applicants and respondents see fit would be a good idea. That way the relevant items that should be covered and addressed will be and anything else that the applicant and respondents find important to them alone could also be covered. The second most frequently provided comment (n=10) was that the court s discretion should not be fettered, but there is likely some benefit in setting out the sort of factors that best interests encompasses. Specific comments provided by the respondents included: I feel that it should be left to the judges to weigh the evidence that is presented to them and that they should have the freedom to do just that. By specifying which factors are of more benefit, you take that away from the judges and perhaps risk certain situations where they would be bound to abide by the legislation where it might not necessarily be in the child s best interest. Outlining specifics may exclude something that may be relevant in one matter but not common to all. But when the child is at a young age it may be beneficial for the FLA to have a bit more specific guideline to the child s best interest when considering parenting schedules. 17

19 Some respondents also commented on the practicality of having a list of best interests for the benefit of families. As one professional commented, it allows laypeople to know what the court will look at. It makes the law a lot more clear and removes some myths e.g., that the parent with the most money will get the kids. Similarly, another professional commented: This helps focus parents on what the court is looking for when they are making a decision about the child(ren) s best interest. They can look at the list and make some judgements on their own about their own situation However, one respondent also noted: It is at least a start for parties to understand some of the tests. However it is never explained to the parties until a judge explains it to the parties. These factors should be explained at the intake stage. Given the FLA attempted to place a higher obligation on the court to ensure the child s physical, psychological, and emotional safety, respondents were asked whether the FLA affords children better protection than other legislation (i.e., the Divorce Act). Fewer than one-half of professionals (43.5%) agreed. When asked to elaborate on their answer, 63 respondents provided 64 comments. The most common comment (n=35) was that the child s physical, psychological and emotional safety has always been the paramount concern of the court, regardless of how legislation was worded. As one respondent commented, the same considerations come into play in making decisions under the Divorce Act as under the FLA. Another professional stated: Although the legislation may specifically set it out more clearly, judges and justices always seem to place the well being of the child as the first priority. Finally, respondents were asked if there are any additional factors that should be considered in determining what is in the best interests of children. A total of 34 18

20 comments to this question were provided by 32 respondents. The most frequent comment (n=6) was that a friendly parent criterion should be included; that is, as one professional noted, if the parents are able to support the children having a positive relationship with the other parent. Another respondent elaborated, Specifically state: Consider the willingness of each guardian to foster or even allow [the] other party to have [a] relationship with the child. The second most common comment was that the list is not exhaustive and the judge should be given wide discretion to consider any factor deemed relevant (n=5). Other factors suggested by professionals included stability in the child s life (n=2), to have an advocate for children in some situations and protect their legal rights (n=2), and mobility (i.e., the distance the child must travel) (n=2). 4.3 Summary Overall, the professionals surveyed were generally positive about the FLA s consideration of best interests of the child. A majority felt that the FLA protected the best interests of children, and many thought that the comprehensive list of factors provided represents a major step forward in family law and the protection of children in family law cases. Respondents felt that outlining specific best interests provided more structure and guidance, particularly in complex cases. Respondents were somewhat divided with regard to the weighting of factors, with just over half agreeing that some factors should be emphasized over others; many believed that judicial discretion continues to be vital as each case presents its own unique situation, and that the safety of children is of the utmost importance. 19

21 5.0 Discussion and Conclusion The principle of the best interests of the child has, particularly in light of the United Nations Convention on the Rights of the Child, become well entrenched in Canadian family law Alberta being no exception. When family law in Alberta was reformed in 2005 with the introduction of the Family Law Act, one goal of the new legislation was to adopt a child-centred perspective that would stress the courts commitment to the best interests of the child, and ensure that the physical, psychological and emotional safety of children involved in family breakdown were protected. The consideration of best interests of the child in the FLA was one of the substantive issues examined in CRILF s evaluation of the impact of the legislation. The following research questions were addressed in this paper: (1) What substantive changes to family law with regard to the best interests of the child were introduced by the Family Law Act? (2) Do these changes represent an improvement over the previous legislative framework in Alberta? (3) How does the Family Law Act s approach to the best interests of the child compare to other jurisdictions? (4) Does consideration of best interests of the child in the Family Law Act ensure the child s physical, psychological, and emotional safety? Two data sources were used to address these questions: (1) the legislative review, which examined the FLA in relation to the previous legislative framework in Alberta and 20

22 compared it to similar legislation in other jurisdictions; and (2) a survey of professionals who work with the Family Law Act. 5.1 Discussion In an attempt to update, simplify, and consolidate Alberta family law with regard to the principle of the best interests of the child, the Family Law Act attempted to clarify the scope and substance of the best interests test. As identified in the legislative review, though the test still applies in similar circumstances as it did under the previous legislative framework (i.e., guardianship, parenting and contact orders (formerly custody and access orders), and enforcement orders), the best interests section of the FLA showed two main differences: an explicit list of the best interests factors that must be considered and a clear statement of the circumstances in which it applies. Though the FLA s consideration of best interests is relatively similar to other Canadian jurisdictions, one very important difference is the inclusion of family violence as a factor that must be considered as part of the best interests test under the FLA. The legislative review also revealed that the FLA has clarified the priority of the best interests of the child: while the previous legislative framework differed on whether best interests was a sole, paramount, or necessary consideration, section 18(1) of the FLA states that the best interests of the child are the sole consideration in applications that impact children. However, the legislative review also revealed some inconsistencies: while section 18(1) explicitly states that best interest of the child be the only consideration in Part 2 of the FLA, the individual sections dealing with guardianship and contact orders state that best interests of the child must be considered in addition to other factors. This raises a question of whether best interests of the child are the sole consideration in the FLA. 21

23 When asked about the FLA s consideration of the best interests of the child, Alberta professionals were generally positive. A majority of professionals surveyed felt that the FLA provides a very comprehensive and holistic list of best interests factors that serve to protect the best interests of children, and that the detailed list of factors provided in the FLA ensures that important elements in a child s life are considered when determining best interests. However, professionals also pointed to the importance of judicial discretion in assessing the importance of each factor and determining the best interests of the child, as situations of parental separation involving children are often unique and complex. As revealed in the legislative review, the FLA s consideration of best interests attempted to prioritize physical, psychological, and emotional safety. Though professionals felt that the FLA effectively accomplished this goal, many felt that the safety of children has always been a priority in determining the best interests of children in Alberta and elsewhere in Canada. 5.2 Conclusion Overall, the evaluation revealed that the FLA s consideration of the best interests of the child is effective in protecting children involved in family breakdown. However, a number of recommendations regarding the consideration of best interests can be drawn. First, as previously discussed, clarification is required regarding whether best interests of the child are the only consideration in Part 2 of the FLA, or a necessary consideration in circumstances involving applications for guardianship and contact. Second, some professionals recommended that the factors listed for consideration include a friendly parent criterion, or rather, the willingness of parents to foster positive relationships with one another. Finally, some professionals stressed the importance of 22

24 the judge s discretion to consider other relevant factors not listed in the FLA, indicating a possible need to clarify this in the legislation. 23