Best Interests of the Child Protecting Your Family's Interests for Over 25 Years

The Best Interests of the Child

Determining Child Custody & Access in Ontario

The “best interests of the child” is a principle grounded in legislation and case law, resulting in both a right of the child and obligation upon the parent. In making an order for custody or access under either the Divorce Act (federal legislation, for married parents pursuing a divorce) or the Children’s Law Reform Act (Ontario legislation applying to parents who are not married, or who are not pursuing a divorce), the court will consider only the best interests of the child.

What exactly is in a child’s best interests is often a matter of individual opinion or interpretation. Section 16 of the Divorce Act specifies that maximum contact between the child and both parents is in the child’s best interests, and that a parent’s past conduct is not relevant, unless that conduct is relevant to that person’s ability to act as a parent. Otherwise, the court is to determine the child’s best interests “by reference to the condition, means, needs and other circumstances of the child.”

This open-ended description of the best interests of the child leaves the court with considerable discretion to determine what is in any given child’s best interests, and to make a determination accordingly.

The Children’s Law Reform Act

The Children’s Law Reform Act, s. 24(2), provides more specific criteria that a court should consider in determining the best interests of a child.

It states that the court shall consider all the child’s needs and circumstances, including,

  • The love, affection and emotional ties between the child and:
    • Each person entitled to or claiming custody of or access to the child;
    • Other members of the child’s family who reside with the child; and
    • Persons involved in the child’s care and upbringing;
  • The child’s views and preferences, if they can reasonably be ascertained;
  • 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 necessaries 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.

Though not enumerated in the above list, Ontario courts will consider any acts of domestic violence or issues relating to substance abuse when making an order for custody or access. For example, behaviours including spousal abuse or substance dependence may be used to determine a parent’s ability to act as a parent.

Areas of Family Law Impacted by the “Best Interests of the Child” Principle

The best interests of the child principle is most often before the courts in a custody or access dispute, but in reality this principle impacts several areas of family law, and will be considered by the courts when making any order that pertains to a child.

For example, the best interests of the child are taken into account when seeking:

  • Custody;
  • Access or guardianship;
  • A change in custody or access arrangements;
  • More or less contact between a parent and child;
  • A change of a child’s surname;
  • Jurisdiction to hear family disputes;
  • Exclusive possession of the matrimonial home;
  • Enforcement of marriage contracts and/or separation agreements; and
  • Mobility.

Where parties are unable to agree upon the best outcome for their children, a court may appoint a professional to perform an assessment. To determine the best interest of the child, courts may rely upon interventions by the Office of the Children’s Lawyer, social workers, or counseling professionals.

Consider Involving Our Ontario Child Custody Lawyers

Given the importance of maintaining a secure relationship with your children, it is imperative that you seek legal advice if you are faced with an application that impacts your custody or access rights. While our comprehensive legal approach to child custody and access issues is the best way to protect your rights, you may consider working with the Feldstein Family Law Group P.C. in other ways in an attempt to reduce your overall legal costs. Our unbundled legal services approach offers specific forms of support, including help with legal research, drafting, and representation during key court appearances. Using unbundled legal services has been shown to help our knowledgeable self-represented clients realize more favourable outcomes.

Find out more about our custody services and how we can help you. Call (905) 581-7222 today! We serve all of Ontario from offices in Vaughan, Oakville, Markham, and Mississauga, including Woodbridge, Maple, Kleinberg, Thornhill, Unionville, Richmond Hill, and the surrounding areas.

Meet Our Dedicated Team of Lawyers

Over a Century of Collective Experience
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    Andrew Feldstein

    Founder

    Andrew Feldstein graduated from Osgoode Hall Law School in 1992. Prior to focusing exclusively on family law, Andrew’s legal practice covered many different areas, including corporate commercial. One of Andrew’s fundamental objectives is to achieve those goals mutually and collaboratively, as set out by him and his client.

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    Deleta Grandy

    Lawyer

    Deleta Grandy obtained her Bachelor of Arts in Legal Studies at the University of Ontario Institute of Technology in 2012, where she graduated with Honours. She completed her legal studies at Western Law School, graduating with a Juris Doctor in 2016.

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    Jeff Hart

    Lawyer

    Jeff obtained his Honours Bachelor of Arts degree in Classical Studies from McMaster University before attending law school at Queen’s.

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    Daphna Schwartz

    Lawyer

    Location: Markham Daphna Schwartz joined Feldstein Family Law Group, P.C. in 2007 as an associate lawyer. She was previously ...
  • Nick  Slinko Photo
    Nick Slinko

    Lawyer

    Location: Vaughan Nick Slinko attended York University from 2003 until 2007 where he majored in both Law & Society and ...
  • Anna  Troitschanski Photo
    Anna Troitschanski

    Lawyer

    Anna Troitschanski joined the team at Feldstein Family Law Group, P.C. in 2012. Prior to that, she practised Family Law at a boutique Newmarket firm. Her experience covers all areas of divorce and family law, including custody and access, child support, spousal support, and division of property.
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    Veronica Yeung

    Lawyer

    Veronica Yeung joined the Feldstein Family Law Group, P.C. as a summer student in 2014 and returned as an articling student in 2015. Following her call to the Ontario Bar in June 2016, Veronica was welcomed to the team as an associate lawyer.

  • Shana  Gordon-Katz Photo
    Shana Gordon-Katz

    Lawyer

    Shana joined Feldstein Family Law Group P.C. as an articling student in 2017. Following her call to the Ontario Bar in June 2018, Shana was welcomed back to the firm as an associate. While completing her articles, Shana assisted with legal matters covering all areas of family law.

  • Shazia  Hafiji Photo
    Shazia Hafiji

    Lawyer

    Shazia Hafiji joined Feldstein Family Law Group P.C. as a summer student in 2016 and returned as an articling student in 2017. Following her Call to the Ontario Bar in 2018, Shazia returned to the firm as an associate lawyer.

  • Lucy  D'Ercole Photo
    Lucy D'Ercole

    Lawyer

    Lucy D’Ercole joined Feldstein Family Law Group P.C. as a summer student in 2017 and returned as an articling student in 2018, during which she gained valuable experience in all areas of family law. Following her call to the Ontario Bar in 2019, Lucy was welcomed back to the firm as an associate lawyer.
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    Joy Pura

    Lawyer

    Joy Pura completed her legal studies and obtained a Juris Doctor at the University of Ottawa. Prior to that, she completed ...
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