The Best Interests of the Child

The “best interests of the child” is a principle grounded in legislation and case law, resulting in both a right of the child and obligation upon the parent. In making an order for parenting time, decision-making responsibility or contact under the Divorce Act (federal legislation, for married parents pursuing a divorce) or the Children’s Law Reform Act (Ontario legislation applying to parents who are not married, or who are not pursuing a divorce), the court will consider only the best interests of the child.

What exactly is in a child’s best interests is often a matter of individual opinion or interpretation. Section 16(2) of the Divorce Act specifies that when considering the best interest factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

This open-ended description of the best interests of the child leaves the court with considerable discretion to determine what is in any given child’s best interests, and to make a determination accordingly.

The Children’s Law Reform Act

The Children’s Law Reform Act, s. 24(3), provides more specific criteria that a court should consider in determining the best interests of a child.

It states that the court shall consider all the child’s needs and circumstances, including,

• the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
• the history of care of the child;
• the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• any plans for the child’s care;
• the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
• the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
• any family violence and its impact on,
  • the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
  • the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
• any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

The relationship by blood or through an adoption order between the child and each person who is a party to the application.

Though not enumerated in the above list, Ontario courts will consider any acts of domestic violence or issues relating to substance abuse when making an order for decision-making responsibility or parenting time. For example, behaviors including spousal abuse or substance dependence may be used to determine a parent’s ability to act as a parent.

The Divorce Act

The Divorce Act, section 16(3), provides the same criteria that a court should consider in determining the best interest of the child.

It states that the court shall consider the child’s physical, emotional and psychological safety, security, and well-being, including,

• The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
• The history of the care of the child;
• The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• Any plans for the child’s care;
• The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
• Any family violence and its impact on, among other things,
  • The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
  • The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
• Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.

While the amendments to the Divorce Act removed the “maximum contact” principle, Section 16(6) now states that the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the child’s best interests.

Areas of Family Law Impacted by the “Best Interests of the Child” Principle

The best interests of the child principle is most often before the courts in a decision-making responsibility, parenting time or parenting dispute, but in reality this principle impacts several areas of family law, and will be considered by the courts when making any order that pertains to a child.

For example, the best interests of the child are taken into account when seeking:

• Decision-making responsibility;
• Parenting time, contact or guardianship;
• A change in parenting time or decision-making responsibility arrangements;
• More or less contact between a parent and child;
• A change of a child’s surname;
• Jurisdiction to hear family disputes;
• Exclusive possession of the matrimonial home;
• Enforcement of marriage contracts and/or separation agreements; and
• Mobility or relocation

Where parties are unable to agree upon the best outcome for their children, a court may appoint a professional to perform an assessment. To determine the best interest of the child, courts may rely upon interventions by the Office of the Children’s Lawyer, social workers, or counseling professionals.

Consider Involving Our Ontario Child Custody Lawyers

Given the importance of maintaining a secure relationship with your children, it is imperative that you seek legal advice if you are faced with an application that impacts your decision-making responsibility, parenting time or parenting rights. While our comprehensive legal approach to decision-making responsibility and parenting time issues is the best way to protect your rights, you may consider working with the Feldstein Family Law Group P.C. in other ways in an attempt to reduce your overall legal costs. Our unbundled legal services approach offers specific forms of support, including help with legal research, drafting, and representation during key court appearances. Using unbundled legal services has been shown to help our knowledgeable self-represented clients realize more favourable outcomes.