Child Custody – Best Interest of the Child

When deciding about child custody, the primary consideration of the courts is to place the child in a situation that serves the child’s best interest. But what is that exactly?

Section 24 of the Children’s Law Reform Act specifically states:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c.  1, s.  3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) 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;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c.  1, s.  3 (1); 2009, c.  11, s.   10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c.  1, s.  3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c.  1, s.  3 (1); 2016, c. 23, s. 7 (2, 3).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c.  1, s.  3 (1)

What does all that mean?

First, it is important to remember that every family is different and the dynamics of each separation will be different. As a result, the court will often consider the rules in light of the specific circumstances of each family and their separation on a case by case basis. This means that the weight allocated to each of the factors included in the decision-making process might differ from one family to the next, giving the judges a fair bit of discretion on how to apply the rules.

Typically, stability is one of the main factors that judges consider strongly. This means that when they consider what is in the best interest of the child in granting custody, they consider which parent can maintain the most stability for the children. Part of this stability can include keeping the children in a familiar home, neighbourhood, school, maintaining contact with friends and with family from both sides. While the courts appreciate that a certain amount of disruption to the children’s lives is inevitable, and while it may not be possible to maintain all factors listed above, the courts will consider as much as possible under the specific circumstances. Traditionally, courts tended to grant custody of young children to their mothers. However, recent decisions have determined that fathers should be given equal consideration in their ability to care for young children such that it is no longer automatically awarded to mothers. Courts have a tendency to apply, where possible, the friendly parent rule, which essentially tends to favour granting custody to the parent who is most likely to allow the other parent access to the children.

Usually, courts will not put any weight on a person’s past behaviour in determining whether to grant child custody or access, unless that behaviour is related to their ability to act as a parent and care for the children. The types of behaviours that would come into consideration would include any violent tendencies towards the former spouse or the children. Similarly, offences against the marriage, such as adultery, which may have formed a large part of the motivation to get a divorce, will not dictate custody and access rights. The idea is that adultery is not necessarily indicative of a parent’s ability to care for their children.

Who can ask for custody and access?

The Children’s Law Reform Act states that having blood ties is only one of the factors that should be considered in deciding custody and access, and it is not given any priority. Some of the other factors include the emotional ties between the children and the individual applying for custody, the emotional ties between the other members of that household, the preferences of the children (if it can be ascertained), the stability of the home environment, the ability of the person to provide for the children (guidance, education, necessities of life), the ability to provide for special needs, and plans for raising the children. The Supreme Court of Canada has ruled that the best interest of the child trumps having blood ties.

Spouses 

According to the federal Divorce Act, only spouses can ask the court to make a determination on custody and access with respect to the children of the marriage. It is called making an application to the court. In some cases, the court can be asked to give permission for another person to bring an application for custody and access, that is called giving leave to bring an application. This can be for a relative or non-relative.

Non-biological parent

A spouse that is not the children’s biological parent can ask for custody and access under The Family Law Act of Ontario if they have “demonstrated a settled intention to treat as a child of his or her family”.

Same-sex marriage

Recent amendments to the Divorce Act now include same sex spouses in the legal definition of a spouse, and the Court of Appeal has further determined that the sexual orientation of a parent does not influence the court’s decision to grant custody and access.

If you or a family member are faced with a potential child custody dispute, it is important that you get adequate legal advice and representation. Our team at Noohi Law is dedicated in ensuring that you achieve the best results possible. Contact us at  (416) 907-7364  or send us an email with your inquiry at  info@noohilaw.com

***Disclaimer: This article is written for informational purposes only and should not be relied upon as legal advice***

References:

Children’s Law Reform Act , RSO 1990, c C.12

https://www.legalline.ca/legal-answers/how-is-child-custody-determined/

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