Parenting issues are some of the most difficult issues faced by separating parents. The “best interest of the child” is the guiding principal for determining how decision making and parenting time relating to children will be allocated. However, when the parents have differing views and evidence on what is in the best interest of their specific child or children, how does a mediator or court reconcile that conflicted information and determine what is in each child’s best interests. In some cases an expert may be needed to help determine. However, for many people, the cost of such expert assistance is unaffordable, especially when they also have ongoing legal fees, costs of mediation, and the inevitable increased costs of running two households instead of one after a separation.
The good news is that expert opinion is not always needed to determine what is in the best interests of the children.
The “best interests of the child” test comes from the Divorce Act (Section 16). The Divorce Act is being amended in March of 2021 and one those amendments is to provide clearer guidelines by providing a list of factors to be applied when considering “best interests”.
The Supreme Court of Canada (SCC) has provided a lengthy, but helpful, decision that explains the “best interest of the child” test in Young v Young and discusses whether expert involvement is automatically necessary or justified. The SCC states that an expert is not always the best person to assess the needs of a child. Rather, it is the parents who know their child best. The parents are actively involved in the day-to-day activities of their child and know the child’s individual personality, moods, behaviors, and attitudes. Therefore, it is the parents who have the best vantage point to provide complete and reliable information to the court. Further, in cases involving older children (such a teens), the child can tell the court about their experience(s) and what they want/need. Looking to the parent, and in certain cases the child him/herself, can provide enough evidence for the court to determine what is in child’s best interests.
In some cases, expert evidence is needed to determine the best interests of a child. Such cases can include those involving a special needs child or a high conflict divorce. The lawyers at SVR Family Lawyers can advise you on whether expert evidence is required for your unique circumstances.