If you have spent time reading or researching topics in family law there is a very good chance you have come across the term, "best interests of the child". If you, like many others, have wondered what that means then you have come to the right article.
Much like it sounds, the question of what is in the "best interests of the child" is asked whenever the court must decide between one course of action and another on a parenting issue, for example, granting (more) parenting time to a parent, and must determine which outcome would better serve the child.
How will the court answer this question of what is in the best interests of the child? What factors will they use to reach a conclusion? One place to search in Ontario is in the Children's Law Reform Act ("CLRA") in sub-sections 24(2) and (3). The Children’s Law reform Act is applicable to unmarried parents, common-law couples, third parties such as grandparents, surrogates and/or other non-parents of a child. The Divorce Act in sub-sections 16(2) and (3) has almost similar terms, which apply to married parents but in this article we will focus on the terms found in the Children’s Law Reform Act.
Section 24(2) tells the Court that in determining the "best interests of a child," they must consider ALL factors related to the circumstances of the child. However, of primary concern to the court is consideration of physical, emotional, and psychological safety, security, and well-being.
Section 24(3) outlines a non-exhaustive list of factors for the court to consider:
(a) The child's needs, given the child's age and stage of development, such as the child's need for stability;
(b) The nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents, and any other person who plays an important role in the child's life;
(c) Each parent's willingness to support the development and maintenance of the child's relationship with the other parent;
(d) The history of care of the child;
(e) The child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f) The child's cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) Any plans for the child's care;
(h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) Any family violence, and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
It's worth noting again that this is not an exhaustive list, which means this list is not all the court can consider. The court is directed to weigh all relevant circumstances, and no single factor is automatically decisive on its own. The weight given to each factor will depend heavily on the specific facts of the case, so “one size does not fit all” with this test.
It is important to understand that the "best interests of the child" test is not a checklist exercise. The court does not simply tally up the factors and see which parent "wins" more of them. Instead, the judge looks at the child's entire circumstances as a whole and considers how the factors interact with one another in the context of that particular family.
For example, a young child who has thrived in a stable routine with one primary caregiver (factor (a) and (d)) may weigh differently than an older teenager who has expressed a clear and well-reasoned preference to live primarily with the other parent (factor (e)). Similarly, where there is evidence of family violence (factor (j)), that consideration can significantly limit or override other factors, such as a parent's wish for equal parenting time.
Because the analysis is so fact-specific, two families with seemingly similar circumstances can end up with very different parenting orders. This is one of the reasons why family law disputes benefit from experienced legal guidance. A lawyer can help you understand how these factors are likely to be applied to your specific situation and help you present your circumstances to the court (or to the other party during negotiations) in the clearest and most persuasive way.
Whether you are negotiating a parenting plan, attending mediation, or preparing for a court hearing, understanding the best interests framework helps you focus on what actually matters to a judge. Arguments framed around a parent's own preferences or grievances toward the other parent typically carry little weight unless they can be tied back to the child's needs and well-being.
If you are involved in a parenting dispute, it is worth taking the time to think through how each of the section 24(3) factors applies to your family's circumstances, and to gather evidence that supports your position on each relevant factor.
Every family's situation is different, and the best interests of the child analysis is inherently fact-driven. If you are navigating a parenting time or decision-making responsibility dispute in Ontario, our family law team can help you understand how these factors apply to your case and guide you through the process whether that means negotiation, mediation, or litigation.
Are you currently involved in a matter involving child access or requires you to consider the best interest of a child? INB Family Law LLP has family law professionals with years of experience, ready to help you navigate any issues that may arise.