What Does "Best Interests of the Child" Mean in Custody Cases?

What Does "Best Interests of the Child" Mean in Custody Cases?

The term best interests of the child refers to a legal test courts apply when making decisions about child custody, parenting time, or access. This applies across Canada under the Divorce Act and, in Alberta and BC, under their respective Family Law Act. 

When Is the Best Interests of the Child Test Applied?

This legal test applies in the following situations:

1. Married parents in Canada under section 16 of the Divorce Act.
2. All parents in British Columbia under section 37 of the Family Law Act (BC).
3. All parents in Alberta under section 18 of the Family Law Act (AB).

If you apply to the court on a matter relating to parenting time or parental decision-making this legal test is what the court will consider when making a decision.

What Factors Determine the Best Interests of the Child?

The test requires the court to assess which circumstances would best support the child’s stability and ongoing development, considering their physical, emotional, and psychological needs. To ensure children’s needs are assessed holistically, the legal test includes a list of factors the judges must consider when making a decision. While this list is not exhaustive and judges have the discretion to consider additional relevant factors, they are required to evaluate at least those specified. No single factor is deemed more important than any other; however, the weight given to each factor may be different depending on the circumstances of that specific case.

The following factors are included in the legal test to guide courts in determining what best serves the child’s interests:

• The child’s physical, psychological, and emotional wellbeing, with an emphasis on creating a stable environment for the child.
• The history of care provided for the child.
• Plans to care for the child.
• The child’s cultural, linguistic, spiritual, and religious upbringing and heritage.
• The child’s views and preferences.
• The nature and strength of the relationship between the child and any other significant person in the child’s life.
• The ability and willingness of each person affected by a potential order to care for the child and cooperate with each other 
• The views of the child’s current guardians, and the benefit to the child of developing and maintaining meaningful relationships with each guardian.
• The ability and willingness of each guardian to exercise their powers, responsibilities and entitlements of guardianship.
• Family violence, either directed at the child or at family members.
• Any civil or criminal proceedings that are relevant to the safety and well-being of the child.

How Does the Court Prioritize the Child's Needs?

No single factor is deemed more important than another, but the weight given to each factor varies depending on the specific circumstances of the case. The court’s goal is to place the child in the best possible position for their safety and growth.

Is the Child Involved in the Legal Process?

Finally, it is important to understand that a child is not a 'party' to the legal process, meaning they do not directly participate in the proceedings or influence the outcome. Despite this, they are profoundly affected by the decisions made about custody, parenting time, or access. Recognizing the vulnerability of children in these situations, the courts are required to approach these decisions with great care, ensuring that the child's needs and welfare are prioritized following their parents' separation. The best interests of the child are intended to help the court place the child in the best possible position for their safety and growth.

This FAQ was prepared by Calgary Articling Student Benjamin Szalay-Anderson.