Best Interests of the Child

A THREE-FOLD CONCEPT

A substantive right - a primary consideration in actions concerning the child due to the child’s dependency, maturity, legal status and often “voicelessness”;

An interpretive principle- if a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen;

A rule of procedure - legal representation, timely decisions, reasons for how a decision was reached, how factors were weighed, and how the child’s views were considered.

CRC General Comment No. 14

Children have less possibility than adults to make a strong case for their own interests, so those involved in decisions affecting a child must be explicitly aware of the child’s interests. If the interests are not highlighted, they tend to be overlooked (GC No. 14, para. 37).

Article 3(1) of the CRC states that in “all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

“Best Interests of the child” is a substantive right and guiding principle that covers all CRC rights, is aimed at the child’s holistic development and requires a rights based approach that promotes the child’s human dignity: adult judgment cannot override the child’s rights. (GC No. 14, paras. 4 and 5) Best interests, as a primary consideration, are not on the same level as other considerations in actions concerning the child, and can resolve conflicts among CRC and/or other human rights (GC No. 14, paras. 6(a) and 37).

Best interests of the child must be determined on a case-by-case basis considering the child’s personal context, situation and needs. While flexible and adaptable, a child’s best interests should not be manipulated and must comply with the child’s other rights (GC 14 paras. 32-3).

For collective decisions, such as those made by legislators, best interests of the child may be assessed and determined in light of the circumstances of the particular group or children in general.

Best interests of the child is a three-fold concept under the CRC. The first is as a substantive legal right, as described above. The second is as a fundamental interpretative legal principle: conflicting interpretations must be resolved by using the interpretation which most effectively serves the child’s best interests (GC No. 14, para. 6(b)). The third is as a procedural rule (GC No. 14, para. 6(b)), which has three aspects to it, legal representation, timely decisions and legal reasoning:

  • A child needs legal representation when his or her best interests are to be formally assessed and determined by courts and equivalent bodies (GC No. 14, para. 96).
  • Decisions must be timely as delays in or prolonged decision making can have particularly adverse effects on children as they evolve (GC No. 14, para. 93).
  • Decisions concerning a child or children must be motivated, justified and explained; if they differ from the child’s views that should be clearly stated, showing how the child’s best interests were a primary consideration and why other considerations outweighed the views of the child (GC No. 14, para. 97).

Best interests of the child are directly (inextricably) linked to the child’s participation rights found in Article 12 of the CRC, discussed in the Child Participation section. The two articles have complementary roles; the first aims to realize the child’s best interests, and the second provides the methodology for hearing the views of the child or children and their inclusion in all matters affecting the child, including the assessment of his or her best interests (GC 14, para. 43).

Courts, administrative authorities at all levels, legislative bodies, as well as private and public entities that provide social services to children must consider the best interests of the child in all actions concerning children. Actions include acts, conduct, proposals, services, procedures, decisions, inaction and other measures that concern children directly or indirectly.

International Law

  • CRC Article 3(1) - In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration

Interpretive Sources

Canadian Law

Federal Legislation

Examples of express references to best interests of the child in federal law:

Provincial and Territorial Legislation

Best interests of the child is contained in many provincial or territorial laws such as family and child protection statues. For example, s. 8 , Children’s Law Act, 1997, S.S. 1997, c. C-8.2 where only the best interests of the child are considered in deciding child custody orders.

Case Law

  • Young v. Young 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (Q.L.) at para. 102 per Justice L’Heureux‑Dubé says the best interests of the child is a child-centric analysis, and “is the positive right [of the child] to the best possible arrangements in the circumstances of the parties”, and should not focus on harm, although the presence or absence of harm may be an important factor. The test is contextual and future focused encompassing a myriad of considerations. It is “person-oriented” rather than “act-oriented” requiring a consideration of the “whole person viewed as a social being” (at para 71).
  • Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 says the best interests of the child test is not precise and depends on the context of the child and, “. . . a more precise test would risk sacrificing the child’s best interests to expediency and certainty. . . .” Madam Justice L’Heureux-Dubé set out “fundamental and uncontroversial premises” as a starting point for her analysis of the test to be applied in determining custody and access under the Divorce Act, including that it is the right of children that custody and access adjudications under the Act be governed by their best interests (ss. 16(8) and 17(5); Young v. Young,[1993] 4 S.C.R. 3; (1993) S.C.J. No. 112 (S.C.C.), at p. 63 (per L’Heureux-Dubé J.) and at p. 117 (per McLachlin J.)), and it is from the child’s perspective, and not from the perspective of either parent, that his or her best interests must be assessed (J. D. Payne, Payne on Divorce (3rd ed. 1993), at p. 279; Young, supra, at p. 63 (per L’Heureux-Dubé J.))
  • Baker v. Canada (Minister of Citizenship and Immigration) 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 established that an immigration decision made on humanitarian and compassionate (H&C) grounds will be unreasonable if the best interests of the child analysis is deficient, and an officer assessing a H&C application must be “alert, alive and sensitive” to the child’s best interests (at para. 75).
  • Kanthasamy v. Canada (Minister of Citizenship and Immigration), [2015] S.C.J. No. 61, 2015 SCC 61 extensively reviews what is encompassed by a best interests analysis for a permanent residence application on humanitarian and compassionate grounds. The Immigration and Refugee Protection Act (IRPA) refers to the need to take "into account the best interests of a child directly affected" which includes "such matters as children's rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections" (para. 41). The best interests principle is "highly contextual" because of the "multitude of factors that may impinge on the child's best interest. It must therefore be applied in a manner responsive to each child's particular age, capacity, needs and maturity. Protecting children through the principle is widely understood and accepted; international human rights instruments including the CRC that Canada signed stress the centrality of the principle. Decision-makers must do more than simply state the interests of the child have been taken into account. They must identify, define and examine them with great attention given all the evidence. Where the legislation specifically directs that the best interests of a child who is "directly affected" be considered, those interests are a “singularly significant focus and perspective” (para. 40).
  • Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475 (CanLII), [2003] 2 F.C. 555 (C.A) involved an immigration case and application of the best interests of the child test in inland applications and says that the best interests of a child must always be determined in H&C applications, specifically for inland applications.
  • Canada (MCI) v. Legault, (Minister of Citizenship and Immigration), 2002 FCA 125 (Canlii) an immigration case says that, in order for the best interests of the child analysis to be complete, these interests must be “well identified and defined”.
  • Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 states that the “best interests of the child,” while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.
  • A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181 says that the best interests of the child concept in the CRC is robust and consistent with international standards.
  • A.M.R.I. v K.E.R., 2011 ONCA 417 (C.A.) is a Hague Convention case involving a child found to be a Convention refugee. The Court found that the weight to be given to the child's best interests under Article 3(1) of the CRC strongly supports the conclusion that a Hague application judge must treat the child's status as a refugee as giving rise to a rebuttable presumption of risk of persecution if the child were forced to return to her country of origin.
  • Report by a Nova Scotia Review Officer (FI-08-107), July 14, 2010 is an administrative decision that reviewed whether the Department of Community Services properly withheld portions of the Record in accordance with the Freedom of Information and Protection of Privacy Act from an adult who had previously been in care. The officer found the information should be fully disclosed as children have a right to information under the CRC and the key principle under protection legislation is best interests which are most often served by access to information about their complete family history.

Parens Patriae Jurisdiction

Where there is a gap in the law pertaining to children one might request the Superior Court to draw on its parens patriae jurisdiction to uphold the best interests of the child.

  • E.(Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388 says the court’s parens patriae jurisdiction is broad in nature but the exercise of discretion under it is not unlimited. It must be exercised to do what is necessary for the protection of the person for whose benefit it is exercised.

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