Family Law / Divorce Library

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BEST-INTERESTS

The only test that courts use to decide Decision-making and Parenting Time is what is in "the best interests of the child".

Because the federal government makes laws about divorces and the provincial government makes laws about unmarried parenting, the test differs depending on whether the parents were married or unmarried.

For parents who were or are married, courts are to consider all of the factors related to the circumstances of the child, including (but not limited to):

  1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

  2. 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;

  3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

  4. the history of care of the child;

  5. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

  6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

  7. any plans for the child’s care;

  8. 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;

  9. 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;

  10. 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 cooperate on issues affecting the child; and

  11. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

When considering family violence, courts must take account the following:

  1. the nature, seriousness and frequency of the family violence and when it occurred;

  2. whether there is a pattern of coercive and controlling behaviour in relation to a family member;

  3. whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

  4. the physical, emotional and psychological harm or risk of harm to the child;

  5. any compromise to the safety of the child or other family member;

  6. whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

  7. any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

  8. any other relevant factor.

The court is prohibited from taking into account past conduct that is not relevant to the exercise of parenting time, decision-making responsibility, or contact with a child. In other words, courts don't want to hear about parents being awful to each other unless it addresses one of the above factors or the factors under another legal test at play.

For unmarried parents, the best interests test states that courts shall ensure the greatest possible protection of the child's physical, psychological, and emotional safety, and shall consider all of the child's needs and circumstances, including:

  1. The child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development;
  2. The history of care for the child;
  3. The child’s cultural, linguistic, religious and spiritual upbringing and heritage;
  4. The child’s views and preferences, to the extent that it is appropriate to ascertain them;
  5. Any plans proposed for the child’s care and upbringing;
  6. Any family violence (including its impact on the safety of the child and other family and household members, the child’s general well‑being, the ability of the 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 the guardians to co‑operate on issues affecting the child);
  7. the nature, strength and stability of the relationship between the child, the guardians or proposed guardians, and each person residing in the child’s household and any other significant person in the child’s life;
  8. The ability and willingness of each person to care for and meet the needs of the child, and to communicate and co‑operate on issues affecting the child;
  9. Taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian;
  10. The ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship; and;
  11. Any civil or criminal proceedings that are relevant to the safety or well‑being of the child.



Authors

Content by Ken Proudman (Edmonton)

Page last reviewed for out-of-date information on [under construction].

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