Best Interests of the Child

The best interests of the child is the overriding principle in all Canadian family law decisions involving children. It means that a court's primary concern is not the rights or preferences of the parents — it is the well-being of the child. The Divorce Act (federal) and provincial family law statutes set out specific factors courts must consider, including the child's physical, emotional, and psychological safety; the child's relationships with each parent and other significant people; the child's cultural, linguistic, and spiritual heritage; and the child's own views and preferences, given their age and maturity. No single factor is determinative — courts weigh all relevant factors together.

The 2021 amendments to the Divorce Act significantly updated the best interests framework. The amendments introduced a non-exhaustive list of factors courts must consider, including: the nature and strength of the child's relationship with each parent; the willingness of each parent 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 cultural, linguistic, religious, and spiritual upbringing; any family violence and its impact on the child; and the ability of each person to communicate and cooperate on matters affecting the child. The amendments also explicitly removed the terms 'custody' and 'access,' replacing them with 'parenting time' and 'decision-making responsibility.'

Courts assess best interests by reviewing the evidence presented by both parties — affidavits, financial statements, parenting plans, and sometimes expert reports. In contested cases, a judge may order a Voice of the Child report (a social worker interviews the child) or a Section 30 assessment (a mental health professional assesses the family and makes recommendations). Courts look at the history of care — who has been the primary caregiver — the stability each parent can offer, the quality of each parent's relationship with the child, and any safety concerns. The goal is always to identify the arrangement that best promotes the child's long-term well-being.

Canadian courts give weight to a child's views and preferences, but the weight depends on the child's age and maturity. There is no fixed age at which a child's preference becomes determinative. A teenager's clearly expressed, consistent preference will carry significant weight. A young child's preference may be considered but given less weight, particularly if there are concerns about parental influence. Courts are alert to situations where a child's stated preference reflects coaching or pressure from a parent. The child's views are one factor among many — they are not a veto.

The 2021 Divorce Act amendments made family violence an explicit and prominent factor in the best interests analysis. Courts must consider any family violence and its impact on the child and on the ability and willingness of the person who engaged in the violence to care for the child. Courts must also consider the steps taken by the person who engaged in the violence to prevent future violence. A history of family violence does not automatically result in no parenting time, but it will significantly affect the parenting arrangement. Safety conditions, supervised parenting time, or no contact orders may be appropriate.

If you are in a parenting dispute, focus your evidence on the child's needs and your ability to meet them — not on attacking the other parent. Document your involvement in the child's daily life: school pickups, medical appointments, extracurricular activities, bedtime routines. Show that you support the child's relationship with the other parent (unless there are genuine safety concerns). Present a realistic, child-focused parenting plan. Avoid making the child a messenger or confidant. Courts notice parents who put the child first — and those who do not.