The Best Interests of the Child

On May 22, 2018 the federal government introduced Bill C-78 which sets out to amend the Divorce Act and other federal legislation that touch on child custody and child support. The Bill attempts to streamline the process for varying child support, and moves away from divisive language such as “custody” and “access” -- terms which have been known to drive conflict between parents sparring over their children.

Perhaps most significantly, however, the Bill confirms that when deciding custody cases, the most important factor to be considered is the “best interests of the child”.  In arriving at the answer to this question, primary consideration is to be given to the child’s “physical, emotional and psychological safety, security and well-being”.  Consideration is also to be given to the child’s own views and preferences (depending on age and maturity).  Also, when deciding whether a parent should be able to relocate with a child, the court is to consider the impact on the child and what is in the child’s best interests as far as community of residence.

In reviewing the Bill and the proposed changes to determining child custody cases, it is clear that the government is seeking to place greater emphasis on what is best for the child -- the vulnerable and innocent young person at the heart of the discussion -- and less emphasis on the often oppositional and contradictory perspectives put forth by the parents.  This is a welcome and overdue legislated transition in perspective. 

But in considering the shift in focus, I am left returning to the Nash Campbell Coroner’s Inquest which followed the young boy’s tragic death in western PEI in June 2013.  After weeks of testimony and expert input, the inquest concluded with the recommendation for the provincial government to appoint a Child Advocate.  Our current government refused the recommendation, inexplicably leaving PEI with the dubious distinction as the only province in Canada without the office of Child Advocate. 

One cannot help but think that the federal government’s proposed Divorce Act changes are being made in the context that the provinces have the resources in place to implement the reforms into practice.  With the pending changes to the Divorce Act, it is increasingly difficult for the PEI government to stand alone amongst all other provinces in Canada with the position that “we know best” and do not need a Child Advocate.  The recent appointment of the children’s lawyer position was helpful and necessary, but that role should not be confused with the independent and supportive role performed by the office of a Child Advocate. 

The essence of the Divorce Act amendments cries out for the office of an independent Child Advocate, not answerable to government, but answerable only to children and their best interests, and possessed with the authority to make recommendations to government for improvements to the system. If children in PEI are to receive the same benefits under the new federal custody laws as children in all other provinces in Canada, with their collective best interests at the forefront of discussion, they need the same resources and support mechanisms in place that those other children enjoy. This is not an area where PEI should be boastful of charting its own course.

Matthew MacFarlane is the Justice Critic for the Green Party of Prince Edward Island