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.

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