The Paramount Principle: Best Interests of the Child


In Canadian family law, the “best interests of the child” principle reigns supreme when determining issues involving children. This guiding principle serves as the cornerstone for all court decisions regarding decision-making responsibility, parenting time and other child-related matters arising from separation and divorce. This principle is enshrined in the federal Divorce Act and provincial legislation, such as Ontario’s Children’s Law Reform Act, which applies to unmarried couples. The child’s well-being takes center stage, superseding the parents’ desires. When parents or judges make decisions that will impact a child, any solution’s primary focus and goal is to ensure that the child’s physical, emotional, and psychological safety, security, and overall well-being are paramount. 

This blog will provide a comprehensive overview of the legislation governing the best interests of the child and will explore how this principle applies in various situations. 

Unpacking the Best Interests Framework

When determining what is best for a particular child in a parenting dispute, a court does not rely on a rigid checklist. Instead, it will consider the legislative framework and factors set out under the Children’s Law Reform Act (Section 24(3)) and the Divorce Act (Section 16(2)) in order to conduct an assessment of:

  • The Child’s Needs and Wishes: The child’s age, maturity level, emotional attachments, expressed wishes and preferences (given appropriate weight based on age), and developmental needs are all crucial considerations for parents and the court when making parenting arrangements. For example, a teenager’s desire for more independence might influence arrangements differently than a young child’s need for stability and a consistent routine. As such, the court will employ a nuanced approach and will assess each case on its unique facts and circumstances. While a young child’s verbalized preference might not hold the same weight as an older child’s, the court will, nevertheless, consider the underlying reasons behind a child’s expressed wishes and how they align with their overall well-being.
  • The Child’s Relationship with Each Parent: The quality and strength of the emotional bond with each parent, history of parenting experiences, and the child’s sense of security with each parent are vital factors to consider when addressing parenting matters. A court will assess how a child feels about spending time with each parent and how well their needs are met in each environment. For instance, a parent who consistently demonstrates warmth, affection, and responsiveness to the child’s cues will likely be viewed favourably. Conversely, a parent with a history of neglect or inconsistent parenting might raise concerns. 
  • Parental Capacity: A court will consider a party’s parenting ability beyond just providing basic necessities before making a parenting order. The court evaluates each parent’s ability to meet the child’s physical, emotional, and educational needs. Additionally, the willingness of each parent to facilitate a positive relationship with the other parent is a significant factor. A parent who consistently undermines the other parent’s role in the child’s life might raise concerns about their ability to prioritize the child’s well-being in a co-parenting dynamic. The court might consider factors like a parent’s mental health stability, employment situation, and access to a support network when assessing their capacity.
  • Impact of Change: Moving to a new house, changing schools, or disrupting established routines can significantly impact a child’s well-being. Therefore, a court will consider how the proposed parenting arrangements might minimize these disruptions and ensure stability for the child. For example, if a child is excelling in a particular school environment, the court might prioritize arrangements that minimize disruption to their education.
  • Parental Cooperation: The court prioritizes arrangements that minimize conflict and promote effective communication between the parents. When parents can communicate effectively and prioritize the child’s needs, it fosters a more positive co-parenting dynamic rather than exposing the child to a stressful environment. The court might consider the parents’ history of communication and their willingness to participate in parenting programs or mediation to improve communication skills before making an order.
  • Family Violence: If there is a history or risk of family violence, a court will take adequate steps to protect the child in question. Accordingly, a parent may be subject to supervised access arrangements or restrictions on contact altogether, depending on the severity of the situation. The court will carefully examine evidence of violence and prioritize the child’s safety above all else.
  • Cultural Background: The child’s cultural heritage is a valuable consideration, as the court aims to create parenting arrangements that respect and support the child’s cultural identity and upbringing. This might involve considering factors such as religious observances, traditional family structures, and the importance of extended family in the child’s life.

Individualized Approach and Flexibility

It is important to note that there is no “one size fits all” solution in family law matters, particularly when it comes to parenting arrangements. Every case is unique, and the court considers all the specific circumstances and evidence to determine the best interests of the child and ensure that their health, safety and overall well-being is prioritized in any parenting schedule. Courts will also consider the child’s feelings, wishes and desires, with appropriate weight given to such expressions depending on the child’s age.

Contact Johnson Miller Family Lawyers for Comprehensive Advice on Parenting Matters

If parents are unable to come to an agreement as to what is best for their child, judicial intervention may be required. At Johnson Miller Family Lawyers, we understand that parenting disputes can be complex and overwhelming, which is why we work closely with you to ensure that we understand your unique needs and circumstances. Our trusted separation and divorce lawyers explain how the law applies to your situation and will help you identify your options at each step of the process. If you have questions about a family law matter, contact Johnson Miller Family Lawyers online or call us at 519.973.1500 to speak with a member of our team.

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