• How are parenting orders determined?
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      What factors do judges consider when making orders about parenting arrangements?

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        Sarah MillerLawyer

          Parenting time and parental decision-making are often the most contentious issues to resolve after a separation. These issues are rarely black and white and involve subjective interpretations about what is best for the children involved. When making an order regarding children, the court can only consider the best interests of the children. The court will not make a parenting order with the goal of punishing a parent or rewarding the other. Likewise, the court cannot consider what is “fair” to the parties, and there is no presumption that any particular arrangement is in a child’s best interest.

          In making an order regarding children, a court may consider a person’s conduct only if it substantially affects one of the factors listed below, and only to the extent that it affects that factor.

          Factors under the s. 37 of the Family Law Act:

          To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered. The following factors are listed under Section 37 of the Family Law Act:

          (a) the child’s health and emotional well-being;

          (b) the child’s views, unless it would be inappropriate to consider them;

          (c) the nature and strength of the relationships between the child and significant persons in the child’s life;

          (d) the history of the child’s care;

          (e) the child’s need for stability, given the child’s age and stage of development;

          (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

          (g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

          (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

          (i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

          (j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

          An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

          Factors under the s. 16 of the Divorce Act:

          s. 16(1): The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.</div>

          s. 16 (2): When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

          s. 16 (3): In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including:

          (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

          (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

          (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

          (d) the history of care of the child;

          (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

          (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

          (g) any plans for the child’s care;

          (h) 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;

          (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

          (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

          (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

          Factors relating to family violence:

          s. 16(4): In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

          (a) the nature, seriousness and frequency of the family violence and when it occurred;

          (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

          (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

          (d) the physical, emotional and psychological harm or risk of harm to the child;

          (e) any compromise to the safety of the child or other family member;

          f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

          (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

          (h) any other relevant factor.

          s. 16(5): In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

          Parenting time consistent with best interests of child:

          s. 16(6): In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

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