More and more, the courts are recognizing the significant negative impact that high conflict family court proceedings can have on children. New research shows that children can suffer trauma from the court process. This trauma can have long term impacts on their mental and physical health, and even contribute to shorter lifespans.
To learn more about the potential impact of a high conflict family court proceeding on a child go to the Transform Family Justice System Collaborative.
There is a duty on all those involved in the family law process, including and especially the parents, to minimize the negative impacts of the separation on the children. It is therefore of central importance that parents only consider the bests interests of the children when making any parenting decision or agreement. Additionally, parents have a responsibility to minimize the conflict witnessed by their children and above all abstain from using their children as bargaining chips in a negotiation process.
If you have children, you should complete an online course called Parenting After Separation to learn more about the laws regarding parenting arrangements and child support and to learn strategies to reduce conflict and put a child’s best interests first.
Best Interests of the Child
The Divorce Act was updated in 2021 and now resembles the Family Law Act when it comes to parenting after separation. Significantly, the Divorce Act no longer uses the terms “custody” and “access” to describe parenting arrangements. The Act is now centred around the rights of the children and not on which parent “wins” custody over them. Parents now have “parenting time” and “decision-making responsibility”.
Under the Divorce Act and the Family Law Act, a judge may only consider the best interests of the child when making parenting orders. This includes considering the child’s physical, emotional, and psychological wellbeing, but there are a number of specific factors judges must consider.
Read the Rules
s. 16(1) Divorce Act and s.37 Family Law Act for the full list of factors the court will look at when considering the best interests of the child
Parenting arrangements describe when parents or guardians spend time with a child and who has the responsibility for making important decisions regarding the child’s upbringing. Every family is different, so it is usually best to make an agreement between the parents. However, the court can make orders if the parties cannot agree. As the child grows up and family dynamics change, orders and agreements may need to be changed to reflect the new circumstances. Changing an order or agreement can usually be negotiated between the parties but they can also apply to the court to change an order. Remember that a judge will only consider the best interests of the child when making a parenting order.
Child support is the legal right of the child. Child support is not linked to parenting time. Parents are legally required to financially support their children, even if they rarely get to see them. Likewise, a parent cannot be denied parenting time because they have fallen behind on child support payments.
The parent who spends less time with the child usually pays the other parent child support. If the child spends roughly the same amount of time with each parent, the parent with the higher income will pay support to the other.
There are guidelines that set out the minimum amount of child support a parent must pay. Parents cannot agree to an amount of child support that is lower than the guidelines and a parent cannot refuse to pay support because they do not like how the receiving parent spends it.
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