How Ontario Courts Decide a Child's Best Interests in Parenting Cases

If you are separating, one phrase will come up again and again: the best interests of the child. It is the test a judge uses to decide who makes major decisions for a child and how the child's time is divided. Knowing what the test looks at can help you plan, talk to the other parent, and prepare for any court process.

This article explains the test in plain language. It is general information, not advice for your situation. How the factors apply depends on your child and your family, so a lawyer can help you with the details.

Which law applies to you

Two statutes can apply. The federal Divorce Act governs parenting between married spouses who are divorcing. The Children's Law Reform Act (CLRA) applies to unmarried or common-law parents and to married parents who are not divorcing.

The two laws have parallel but separately numbered sections. The best-interests factors are in Divorce Act s. 16(3), and the parallel Ontario list is in CLRA s. 24(3).

The words have changed too. The terms decision-making responsibility and parenting time replaced custody and access. Both laws now use the newer terms, but older orders and agreements still use the old ones, so you may see both sets of words.

Safety and well-being come first

Under CLRA s. 24(2) and Divorce Act s. 16(2), the court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. Every other factor is weighed with that in mind.

Decision-making responsibility covers significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extra-curricular activities. The court can give it to one parent, to both, or divide it.

The listed factors

Divorce Act s. 16(3) lists the factors, and CLRA s. 24(3) has a parallel list. In plain terms, they include:

• The child's needs, given their age and stage of development.
• The child's relationships.
• Each parent's willingness to support the child's relationship with the other parent.
• The history of care of the child.
• The child's views and preferences.
• The child's heritage.
• Each parent's plan for the child's care.
• Each person's ability to care for the child.
• The ability to communicate and cooperate.
• Family violence.
• Any related civil, criminal or child protection proceedings.

The list is not exhaustive. A court may consider factors that are not on it, while always giving priority to the child's safety.

People often ask about parental alienation. The statutes do not use that word, but willingness to support the child's relationship with the other parent is a listed factor.

Time, conduct and the child's voice

A child should have as much time with each parent as is consistent with the child's best interests. The right amount is worked out for each child rather than by a fixed formula, and it is subject to the child's safety. No fixed schedule by age is set out as the law, so a plan for a teenager may look very different from one for an infant.

The court does not consider a person's past conduct unless it is relevant to their parenting time, decision-making responsibility or contact.

The court considers the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained. Under CLRA s. 64, the court must, where possible, take the child's views into account, and it may interview the child. The interview must be recorded.

Questions about how time is shared, and how that connects to other issues such as support, can get complicated. How this applies depends on your situation, so it is worth confirming with a lawyer.

Family violence, agreements and assessments

Family violence means conduct by one family member towards another that is violent or threatening, forms a pattern of coercive and controlling behaviour, or causes fear for safety. It need not be a criminal offence.

When assessing it, the court considers factors such as its nature, seriousness and frequency, any pattern of coercive and controlling behaviour, whether the child was the target or was exposed, harm or risk of harm to the child, fear for safety, and steps taken by the violent person to prevent further violence. Safety terms can include supervised parenting time, and the supervisor must first consent.

Parents can agree on parenting in a separation agreement. But a court may disregard a provision on decision-making responsibility or parenting time if that is in the child's best interests. An agreed plan never binds the court on these issues.

In some cases the court may appoint a qualified professional to assess the child's needs and each party's ability to meet them, and may draw inferences if a party refuses to attend. The court may also involve the Office of the Children's Lawyer, an independent law office within the Ministry of the Attorney General.

What to do next

• Work out whether you are married and divorcing, because that decides whether the Divorce Act or the CLRA applies.
• Write down your child's routine, needs, school, health and relationships, and who has done what caregiving.
• Draft a realistic care plan that supports the child's relationship with the other parent.
• Keep records of any safety concerns, and seek help promptly if you or your child are afraid.
• Keep communication with the other parent calm and child-focused.
• Ask a lawyer to review any agreement before you sign it.

A lawyer can explain how these factors may apply to your family and what to expect.

Frequently asked questions