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

The Best Interests of the Child

Determining Parenting Time and Decision-Making Responsibility 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 parenting time, decision-making responsibility or contact under 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(2) of the Divorce Act specifies that when considering the best interest factors, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

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(3), 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 child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • 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;
  • each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
  • the history of care of the child;
  • the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • any plans for the child’s care;
  • 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;
  • 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;
  • any family violence and its impact on,
    • the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
    • 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
  • any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

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 decision-making responsibility or parenting time. For example, behaviours including spousal abuse or substance dependence may be used to determine a parent’s ability to act as a parent.

The Divorce Act

The Divorce Act, section 16(3), provides the same criteria that a court should consider in determining the best interest of the child.

It states that the court shall consider the child’s physical, emotional and psychological safety, security, and well-being, including,

  • The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  • Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  • The history of the care of the child;
  • The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • Any plans for the child’s care;
  • The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  • Any family violence and its impact on, among other things,
    • The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and
    • The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  • Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.

While the amendments to the Divorce Act removed the “maximum contact” principle, Section 16(6) now states that the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the child’s best interests.

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 decision-making responsibility, parenting time or parenting 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:

  • Decision-making responsibility;
  • Parenting time, contact or guardianship;
  • A change in parenting time or decision-making responsibility 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 or relocation

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 decision-making responsibility, parenting time or parenting rights. While our comprehensive legal approach to decision-making responsibility and parenting time 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 and parenting services and how we can help you. Call (905) 581-7222 today!

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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

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    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

    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

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

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

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    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

    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.

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    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.

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    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.

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    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

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    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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    Rachel Zweig

    Lawyer

    Rachel joined Feldstein Family Law Group P.C as a Summer Student in 2019 and returned as an Articling Student in 2020-2021. ...
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