In my discussion with the Privacy Commissioner yesterday, he referenced a couple of existing cases in Canada that he said related to the best interests of the child. In fact, he gave me a couple of examples of where the best interests of the child were included.
The first example is the case of K.M.N. v. S.Z.M., 2024 BCCA 70. The B.C. Court of Appeal allowed an appeal by a mother because the trial judge failed to conduct a proper analysis of the allegations of family violence by the father. The court in this instance recognized that the best interests of the child are of paramount importance in family law matters. This new judgment clarified that it is not sufficient to limit the best interests of the child analysis “to evidence of violence specifically directed towards the child”.
We can also look at the 2015 Supreme Court of Canada case Kanthasamy v. Canada. In this case, the Supreme Court of Canada considered the best interests of the child and made a decision in the context of an application for permanent residence on humanitarian and compassionate grounds. It held that decision-makers, in this case the Department of Immigration, must identify, define and examine the best interests of the child and consider them in view of the other relevant factors.
The best interests of the child, in my opinion, is not a subjective construct. Provinces across the country have the best interests of the child written into many laws. Here is a list of the references where the best interests of the child is used: Manitoba family law, B.C. family law, Alberta family law, Nova Scotia family law, Ontario family law, Northwest Territories, Prince Edward Island, Newfoundland and Labrador, and Nunavut.