Are Children From The Same Parents Treated The Same At Separation?

It is widely accepted that no two children are the same, even when determining child custody. This equally applies to children within one family belonging to the same parents.  Children are of different ages, genders, personalities and profiles. Some children are academic, while others are athletic. Some children are social, while others are introverted. Some siblings are close friends, while others are distant. Some children are closely bonded to one parent and distant from the other. 

When it comes to separation and divorce, even the law recognizes that the schedule that a child has with each parent is based on that specific child, and not on children in general. That is why throughout all of Canada, the legal test to determine a child’s schedule with each parent is called the “best interest of the child test”. 

Canada’s Divorce Act demonstrates that any determination of custody, access or the schedule for a child following her parents’ separation and divorce is based on factors that are specific to that child. Despite this, some believe that the children should be treated as one unit.  

Those who believe that the children should move in lockstep together from one parent’s home to the other parent’s home argue that the children will benefit from stability and consistency. However, the legislation was drafted to specifically address each individual child and not the group of children in a family unit.

‘Best interest of the child test’ (Child custody case study)

Section 16 of the Divorce Act dictates that a judge is only to consider the best interests of the specific child and give effect to the principle that each child should have as much contact with each parent as is consistent with the best interests of that child, known as “the maximum contact principle”.  

That is why the case of Doncaster v. Field, [2019] N.S.J. No. 300 has attracted attention. This family law case involved a father of four children who was granted access to his two older children, but denied access to his two younger children. The two younger children said that they did not wish to see their father.  The lower court judge was required to consider whether access by the father was in the best interests of the children.  In this case, the judge was provided with evidence of what the four children wanted.  The older two children wanted a relationship with their father, but the younger two children did not.  In this case, the father appealed by arguing that the children’s wishes should not be determinative of their best interests and that, by denying him a relationship with the two younger children, the judge breached the maximum contact principle.  

The Nova Scotia Court of Appeal stated that “the wishes of a 14 and 13 year old are certainly to be carefully considered in determining their best interests, but they remain only one factor among the conditions, means, needs and other circumstances of the children that a judge must assess in reaching a decision.”

In the end, the court did grant the father contact with the younger two children, but only at times arranged by the children through email with their father.

This case is a reminder that no two children from the same family are treated the same after separation, and that the older the child the more their wishes determine their contact with each parent.  That goes to show child custody cases aren’t always straightforward

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