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Family Law Act Best Interests Of The Child

Family Law Act Best Interests

Do you want to know about the family law act an the best interest of the child? Are you having a custody and access dispute? The test for determining the appropriate parenting arrangement can be hard. As a guideline, it is always what is in the “best interests” of the child. Firstly, to determine the best interests of the child, the courts and legislation have formulated a test. Secondly, this test contains factors a court should consider and make decisions on. Most often, the factors are considered and applied by affidavit or oral evidence from the parents. The parents will outline their experiences to provide the best evidence they can. Further, they will try to show that their proposal for custody or access is in the best interest of the child.

Interests Of The Child And Family Law Act

However, evidence from the parents will always be missing a piece of information.  It is missing information from the child regarding their thoughts, opinions, and feelings.  The Family Law Act is something clients come to discuss with us. The client wants to know what is in the best interests of the child in the eyes of the judge. Therefore, this often leads to the question, will the court ever hear evidence directly from the child?

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Family Law Act Ontario Best Interests of Child

There are three ways that the court can obtain evidence directly from the child regarding custody and access.  First, if the child is old enough, they can be a witness or provide affidavit evidence. Second, if they are not old enough, the court can order an assessment of the child. This can be done by a psychologist, psychiatrist, or social worker. Third, in Ontario, the court can order that the Office of the Children’s Lawyer should be involved in the matter. They might have a lawyer appointed to represent the child’s wishes. Finally, the lawyer might also complete an investigation into the child’s wishes.

Physical Psychological And Emotional Safety

A parent may have a child swear an affidavit to put before the court setting out their wishes or have them appear to give oral evidence in court. It is rare that the court will allow for children to give directly give evidence in this manner as it may cause the child harm.  It will often only be allowed if the child is older and usually not until the child is a teenager.

A court can order that an assessment be completed by a psychiatrist, psychologist, or social worker. This might be done to provide insight into the best interests of the child. They will also be looking into the needs of the child and the ability of the parents to meet the needs of the child. Typically, an assessment will only be ordered if there are clinical issues. This might be concerned with the child’s mental health. Parties can also agree to have an assessment completed.  One drawback of assessments is that they can be costly to obtain.

Office of the Children’s Lawyer

The Office of the Children’s Lawyer (OCL) is the most common method of ascertaining the children’s wishes in a custody and access dispute. A court can order that a lawyer be appointed from the OCL to represent the child.  The OCL would then have the responsibility of representing the child’s views and providing the court with context for those views. A court can also order that instead of individual representation for the child that the OCL performs an investigation. They might prepare a report and make recommendations to the court on the child’s needs.  Further, the OCL has in-house social workers to complete such an investigation.

This organization is a government-run law firm. Their main focus is to protect children under the age of 18. Keep in mind children become adults in Ontario at age 18. In BC, it’s 19 years old. The OCL helps children make decisions about their rights, most often during a divorce or separation of their parents. OCL has lawyers and psychologists that work for them. The lawyers handle the legal side of the issue, and the psychologist provides expert reports. The psychologist normally provides the OCL lawyer a report that can be brought to family court.

When a family law judge reviews a report by the Office of the Children’s Lawyer, they do not have to accept it. If you do not agree with the report, you can hire a lawyer to argue why the report is incorrect. Also, you can point out all the false assumptions that lead to the investigator reaching their decision. Therefore, it’s important to have a lawyer so you can present your evidence to the courts properly.

Determining The Child’s Best Interests

Often there will be a cross-examination of the expert in the courts. Both the lawyer for OCL and your family lawyer will be able to ask hard questions. If you agree with the report, you want to make sure the expert looks credible. If you don’t agree with the report, you want to point out why the expert was wrong.

The OCL takes on around 11K cases per year. So it’s possible that they make many mistakes. Almost all of them are about parents fighting over the custody and access of the children. These are very complicated matters. In order to be considered an expert and work at OCL, you need to have a master’s degree. They are not all psychologists with PHDs.

Have questions about the best interests of the child in Ontario? Make sure to speak to one of the family law lawyers. We have experience assisting clients with custody and access matters. Also, speak to us about self-represented coaching if you cannot afford a lawyer full time. You can call us toll-free at 1-844-466-6529

Domestic Violence Family Dispute

You can also use the live chat in the bottom right of the screen to speak to us about your legal issue. Further, you can book a 15-minute consultation on our main page.

In conclusion, do you still have questions about the Family Law Act? See our videos.

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In conclusion, reach out to us if you have questions about the Family Law Act and best interests of the child. Click here to watch videos about family law.

Family Law Act Best Interests FAQ

How does the family law act impact me?

It will depend on your situation. The best thing for you to do is to get a free consultation with a lawyer. You can then learn about the process and the costs.

Will a judge take my child away?

It’s rare but it does happen.

Is family law provincial or federal?

It’s actually both. That is what makes it so confusing. Every province has their own provincial laws. But the Divorce Act also applies (and is federal.) You have to learn at least two Acts for family law.

What questions should I ask the family law firm?

You should know what answers you want to know before reaching out. You don’t want to waste the law firm’s time.

How do I make sure I win my case?

Hiring a lawyer will help. But keep in mind, nothing is guaranteed in family law.

Do I have legal rights?

Yes, of course you do.