Best Interests of the Child in Manitoba Parenting Cases

Almost every Manitoba parenting dispute comes down to one question: what is in the child's best interests? Understanding the factors helps you prepare a realistic plan and focus on what a judge will actually weigh.

This article walks through the main factors in the Family Law Act and the Divorce Act. It is general information, not a prediction of how any case will turn out.

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 says the same for married spouses.

The test also applies when the court makes an interim or variation order.

Manitoba's Family Law Act replaced the older ideas of custody and access with parenting orders that set parenting time and decision-making responsibility. Decision-making responsibility means responsibility for making significant decisions about a child's well-being, covering health, education, culture and religion, and significant extra-curricular activities.

Without a parenting order, parents have joint rights to exercise parental responsibilities for their children. There is an exception: where the parents never lived together after the child's birth, the parent with whom the child resides is the only parent with decision-making responsibility, unless a parenting order says otherwise.

Factors about the child

• 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.
• The history of care of the child.
• The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous heritage.
• The child's views and preferences, given due weight according to age and maturity, unless they cannot be ascertained.

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 offers brief consultations for teenage children at no cost through Family Resolution Service.

Factors about the parents

• Each person's willingness to support the child's relationships with others.
• Any plan for the child's care.
• Each person's ability and willingness to care for and meet the child's needs.
• Each person's ability and willingness to communicate and cooperate on matters affecting the child.
• Any civil or criminal proceeding, order, condition or measure relevant to the child's safety and well-being.

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

Family violence

Family violence and its impact is a best-interests factor, including the ability of the person who engaged in it to care for and meet the child's needs 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 conduct, any pattern of coercive and controlling behaviour, whether the child was targeted or exposed, harm or risk of harm, fear for safety and steps taken to prevent further violence.

Past conduct is not considered unless it is relevant to the exercise of a person's parenting time, decision-making responsibility or contact.

What a parenting order can do and who can ask for one

A parenting order may allocate parenting time and decision-making responsibility (or any of its elements) to either parent, to both parents, or to others as the Act permits. It may be for a definite or indefinite period and may authorize or prohibit the relocation of the child. Parenting time may be allocated by a schedule unless a schedule is unnecessary. The person with parenting time has exclusive authority over day-to-day decisions during that time, and under the Divorce Act this applies unless the court orders otherwise.

An application for a parenting order may be made by either or both parents, or by a person other than a parent who stands in the place of a parent. A non-parent applying needs leave of the court and must give notice to the parents.

Grandparents and step-parents generally seek contact rather than parenting time. A family member may apply for a contact order, and a non-family member needs leave of the court.

Preparing your case

If parents cannot agree, each must submit their own parenting plan, which covers time with each parent, how decisions are made and how information is shared. Link each part of your plan to the child's needs rather than to your own preferences.

• Describe who has cared for the child so far and how.
• Explain how your plan keeps the child's routine stable.
• Show how you will support the child's other relationships.
• Keep records of any safety concerns and speak with a lawyer promptly about them.
• Keep communication with the other parent calm and child-focused.

For a contested case, the prerequisites include attending the For the Sake of the Children Program, completing written parenting plans, exchanging a financial statement (Form 70D) and the last three years of income tax returns, documenting attempted mediation, and obtaining any required assessment report. The For the Sake of the Children program is not required in some situations, such as where the other parent lives outside Manitoba, the parties consent to the order, the matter is unopposed, or the parent attended within the three years before the petition was filed.

Once the prerequisites are met, the party files the Request for Triage Conference (Form 70D.2), Certificate of Prerequisite Completion (Form 70D.3) and Triage Brief (Form 70D.4). Urgent matters, such as an immediate risk to a party or child, can go to an emergent hearing before triage using Form 70BB. How these steps apply to you depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions