The Best Interests Of The Child: A Key Tool In Custody And Access Cases

All child custody and access cases rely on the “best interests of the child” test. This principle, found in section 16 the Divorce Act and referred to 20 times in the Children’s Law Reform Act is fundamental to child support, custody and access disputes in Ontario. Understanding this concept can help you navigate family law and know what to expect when going through a dispute.

What is “the best interests of the child” test?

At its core, “the best interests of the child” means that in child support, custody and access disputes, the courts should not take the interests of the parents into account and focus on creating the best possible situation for the child. Section 24 (2) providers a list of criteria that the court should consider to determine the best interests of a child. These factors include:

· The love, affection and emotional ties between the child and:

o Each person entitled to or claiming custody of or access to the child;

o Other members of the child’s family who reside with the child =; and

o Persons involved in the child’s care and upbringing;

· The child’s views and preferences;

· The length of time the child has lived in a stable home environment;

· The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child;

· The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

· The permanence and stability of the family unit with which it is proposed that the child will live;

· The ability of each person applying for custody of or access to the child to act as a parent; and

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

This list is not exhaustive. The courts are allowed to consider other factors including the parents' histories domestic violence or substance abuse.

How does this doctrine affect child support, custody and access disputes?

Many self-represented litigants in the family court system focus too much on their own needs when negotiating parenting plans or presenting arguments to the court. Parents should put their children first when considering a child’s upbringing post-separation. Parents should also be aware of the beliefs commonly held by the courts. One common frustration many parents face is the court’s reluctance to completely cut their former partner out of a child’s life. While the courts have, in limited circumstances, granted such a request, it is rare for the courts to believe that denying all access to both parents is in the best interests of the child. The “best interests of the child” test also makes it rare for a parent to be relieved of the obligation to pay child support.

Always remember, if you are in a child support, custody or access dispute, you do not have to face your situation alone. Call us at (647)-494-9599 or email us at info@law365.ca. We would be happy to help you through your family law dispute with legal advice or representation.