Best Interests of the Child in Manitoba: What Courts Weigh

Nearly every parenting dispute comes back to one phrase: the best interests of the child. It sounds general, but the law gives judges a list of factors to work through.

This article walks through those factors in plain words and suggests the kind of information that tends to be relevant. It is general information, not advice on your case.

This article covers the law of Manitoba.

The test and its starting point

Under the Family Law Act the court must only consider the best interests of the child in making a parenting order, and must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The Divorce Act uses the same approach. The section also applies to interim and variation orders.

In allocating parenting time, a child should have as much time with each spouse as is consistent with the child's best interests.

A parenting order is how the court sets parenting time and decision-making responsibility. Manitoba's Family Law Act replaced the older ideas of custody and access with these terms. An order may allocate parenting time and decision-making responsibility to either parent, to both parents, or to others as the Act permits.

Without a parenting order, parents generally have joint rights to exercise parental responsibilities for their children. Where the parents never lived together after the child's birth, the parent the child lives with is the only parent with decision-making responsibility, unless a parenting order says otherwise.

Either or both parents, or a person who stands in the place of a parent, can apply for a parenting order. A non-parent applying under that section needs leave of the court and must give notice to the parents.

The main factors

• The child's needs given age and stage of development, such as stability, the nature and strength of the child's relationships with parents, siblings, grandparents and others important to the child, and the history of care.
• Each person's willingness to support the child's relationships with others, any plan for the child's care, and the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous heritage.
• Any civil or criminal proceeding, order, condition or measure relevant to the child's safety and well-being.
• Each person's ability and willingness to care for and meet the child's needs, and to communicate and cooperate with one another on matters affecting the child.
• The child's views and preferences, given due weight according to age and maturity, unless they cannot be ascertained.

The child's views are weighed, not decisive. The statutes set no fixed age at which a child's choice decides the matter. If a child's views cannot be determined, the court proceeds on the other factors. Manitoba's Family Division also offers brief consultations for teenage children through Family Resolution Service at no cost.

Family violence

Family violence and its impact is a factor, including the ability of the person who engaged in it to care for the child and whether it is appropriate to require cooperation on matters affecting the child. The Family Law Act defines it as any conduct, whether or not a criminal offence, by a family member toward another family member, including coercive and controlling behaviour and exposing a child to such conduct.

The court looks at the nature, seriousness, frequency and timing of the violence, any pattern of coercive and controlling behaviour, whether the child was targeted or exposed, harm or risk of harm to the child, and steps taken to prevent further violence.

Past conduct and what evidence helps

Past conduct is not considered unless it is relevant to the exercise of a person's parenting time, decision-making responsibility or contact. So arguments about the other parent's unrelated faults usually carry little weight.

Because the factors focus on the child, useful information tends to connect directly to them. A lawyer can advise what is suitable for your case.

• A realistic plan for the child's care, schedule and decision-making.
• Records of who has handled routines, school, health and activities, which relate to the history of care.
• Examples of supporting the child's relationship with the other parent.
• Relevant orders or court documents concerning safety.

A parenting order can be for a definite or indefinite period. It can be varied, suspended or terminated only if the court is satisfied the child's circumstances have changed since the original order. This is one reason it helps to keep a clear record of what actually happens in the child's life over time.

What to do next

If the matter goes to court, the process follows set steps. The applicant files an application in the Family Division and serves the other party. Prerequisites for a contested parenting case include attending the For the Sake of the Children Program, both parents completing a written parenting plan, and documenting attempted mediation, among others. After triage a case conference is scheduled within 30 days. Urgent matters, such as immediate risk to a party or child, can go to an emergent hearing before triage.

The For the Sake of the Children program is not required in some situations, for example where the parties consent to the order or the parent attended within the three years before the petition was filed. The Family Law Act also requires parties, to the extent appropriate, to try to resolve matters through a family dispute resolution process such as negotiation, mediation, collaborative law or family arbitration.

• Draft your own parenting plan; each parent must submit one if you cannot agree.
• Organize dates and documents tied to the factors above.
• Keep communication with the other parent calm and child-focused.
• Ask about mediation or a parenting assessment.
• Book advice from a lawyer before filing or responding.

Frequently asked questions