As Family lawyers, we often remind clients that separation and divorce law in Ontario is not about assigning parental blame. Instead, whenever children are involved the courts’ focus is on what arrangement will serve the child’s best interests.
That principle applies whether parents are divorcing, separating, or – in more complex cases – when a child is placed in foster care. Whenever a child is involved, it becomes the paramount consideration.
As February is Black History Month, it is also an opportunity to reflect on how courts consider a child’s cultural identity, racial background, and sense of belonging as part of that best-interests analysis.
“Best Interests of the Child”: More Than a Catchphrase
Many parents are surprised to learn how broad the “best interests of the child” test really is. Ontario courts are required to look at all aspects of the child’s existence – not just where they will live, but rather how the courts’ and the parents’ decisions affect their emotional security, identity, stability, and development.
That includes factors such as:
- The child’s physical and emotional needs
- The importance of stable relationships
- Continuity of care
- The child’s own views, where appropriate (in light of age and maturity)
- Family and sibling relationships
- Cultural, racial, and community connections
These considerations are not abstract. They play out in real cases with real children, often in difficult circumstances.
A Case That Highlights Cultural Identity
A 2020 Ontario decision involving a child in foster care illustrates how carefully courts weigh these issues.
In that case, the court was asked to decide whether an eight-year-old child should remain in foster care in Ontario or be placed with her biological father in another province.
What made the case especially significant was the court’s attention to the child’s cultural and racial identity. The evidence showed that the child, who is Black, had limited opportunities to engage with her cultural community. The court emphasized the continued need for this engagement, and for opportunities to develop a healthy cultural and racial identity, observing:
(iii) Child’s Race, Ethnicity and Gender Expression
19. … As a Black youth in a community with largely European heritage, [the child] may already have experienced institutional bias. The evidence is that she experienced racist comments in one of her foster placements, resulting in a move from that placement and detachment from caregivers.
20. Father is Black and resides with his mother in Edmonton, Alberta’s largest and probably most ethnically-diverse city. In contrast, [the child’s] racially-matched foster parent was unable to care for her after February 3, 2020 for personal reasons, and no alternative match could be found. Consequently, [the child] is now residing with a Caucasian foster family and told her lawyer that she had not attended any Black History Month events. … [E]ncounters with racism are not just long-lasting but life-lasting, and that experiences shared with her siblings could provide a source of strength as [the child] develops her own world-view. …
The court added that “skin colour is only one aspect of personal identity”, and detailed the various roles that each foster parent could play, in nurturing a positive network of cultural connections. The court went on to consider whether placement with a Black parent and extended family could provide not only physical safety, but emotional grounding and cultural continuity for this particular child.
Why This Matters Beyond Foster Care Cases
While most divorce cases do not involve foster care, the underlying lesson applies to many separating families.
If you are one of them, you should know that courts are increasingly attentive to the reality that children do not experience family breakdown in a vacuum. Your child’s background, community, and identity all shape how they experience change. For racialized children, that can include navigating discrimination, feeling different from peers, or lacking representation in their immediate environment.
During Black History Month, you and your family may be more aware of conversations about race, history, and identity – and your children may have questions or experiences that deserve thoughtful support. Your parenting plans and separation agreements can, and often should, take these realities into account.
In our practice, we help parents working hard to create arrangements that:
- Preserve meaningful family and sibling relationships
- Support children’s cultural and community connections
- Reduce unnecessary disruption
- Prioritize stability and emotional safety
If you are separating and have questions about parenting arrangements, cultural considerations, or how courts approach a child’s best interests, consider contacting us.
