What are “the best interests of the child”?
The “best interests of the child” (BIOC) is the key test used by child protection authorities and the courts for any legal matter involving children. It has even been used to override parents’ Charter rights, such as their right to freedom of expression and their right to freedom of movement. It is very broadly defined, so it can be difficult to interpret.

The BIOC test is discussed in the federal Divorce Act, but not defined there. This means that the BIOC could differ slightly between provinces. Each province has legislation that defines the BIOC. It is usually a long and complex definition, involving many factors, some of which include:

• the child’s emotional ties;
• the child’s preferences, if the child is able to communicate them;
• how long a child has been living in a stable environment;
• the ability of an applicant to act as a parent;
• the ability and willingness of an applicant to provide for the child;
• relationships by blood or through adoption between the child and any applicant(s).

Once I am in prison, do I still have the right to see my child?
The Task Force on Federally Sentenced Women recommended in its 1990 report, Creating Choices, that all new prisons for women be equipped to accommodate mothers with their young children. For existing facilities, the Task Force recommended that CSC “must provide the necessary resources to enable regular and close contact between mothers and children.”

For a while, there were children in the Okimaw Ohci Healing Lodge and some of the regional prisons, but it is now relatively rare to have a child with her mother in the prisons for women. However, some CSC staff have declared on occasion that the reason a particular prison has no Mother-Child Program up and running is that no eligible women have requested their children live with them at the prison. If this is the option you would choose for yourself and your child, you should definitely pursue it in whichever prison you are placed.

Courts can order that parents should have no access to their children. All decisions are made according to the judge’s interpretation of the best interests of the child. There are examples of prisoners maintaining access even under extreme conditions, such as a father who was able to maintain telephone access with his children even though he was in jail for killing their mother.⁵⁹