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Children in Family Law Proceedings

A look at all of the various pieces that make up family law legislation will quickly reveal that one of the most significant undertones is the protection of children. This becomes even more apparent with a look at the jurisprudence.

The Crown Policy Manual, although with an emphasis on the criminal justice system, makes a powerful statement about children in our society: “Children are the most vulnerable of all victims in the criminal justice system. There is an automatic power imbalance between the adult perpetrator and child victim, often associated with a position of trust. These crimes frequently have crippling effects on the psychological and emotional well being of the victim” (Ministry of the Attorney General, Ontario, Crown Policy Manual: Child Abuse, Internet-Based and Other Offences Involving Children at para. 3). While this is evidently a statement about children in the criminal justice system, it can certainly be extrapolated to children in the midst of a family breakdown.

While I might be hesitant to go so far as to call children whose parents are going through a divorce ‘victims,’ they are, generally speaking, significantly impacted by the decisions of their parents. The law appears to recognize this, ensuring, for example, that child support is provided before spousal support is. Pursuant to section 11(1)(b) of the Divorce Act, R.S.C. 1985, c. 3 [Divorce Act], the court must be satisfied that reasonable arrangements have been made for the support of the children, without which the court is required to stay the granting of the divorce until arrangements are made. As well, in terms of custody and access, the same principles apply. Under both the Children’s Law Reform Act, R.S.O. 1990 c C-12, s. 6.1(3) and the Divorce Act [at s. 16(8)], the issue of custody is determined on the basis of the “best interests of the child.”

This points to the idea that a family is a family and however it is composed, the children, whether or not they are direct offspring, need to be protected. While some of the other areas of Family Law still seem to be embodying or preserving the status quo of the past, or at least endeavoring to do so, the law as it relates to children involved in family breakdown seems to be much more forward-thinking. The strategy appears to be one that is child-centered, with a focus on helping the parents minimize the negative effects of separation and divorce on their children (JoAnn Kurtz, Family Law: Practice and Procedure, 4th ed, Toronto: Edmond Montgomery Publications, 2015 at 65). This is extremely important as the children of any relationship cannot be dealt with as an afterthought. They are not there by choice, and so their interests must be paramount in any family breakdown. The objective must be to mitigate any harm and give them every chance to have a “normal” future.

If you have questions about this or any other family law matter, feel free to contact a family lawyer at Radley Family Law for more information. Our team has years of experience helping Ontario families in a wide variety of family disputes and legal issues.

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