The best interests of the child test
The best interests of the child test is the test that is applied by courts when they make determinations about appropriate parenting arrangements for families after the parents separate (or if the parents have never cohabited).
While the wording of the best interests of the child test is slightly different in the Children’s Law Reform Act (CLRA) and the Divorce Act (DA), they are effectively identical. In both cases:
- This is the only test that the court can use when deciding on parenting arrangements. It is intended to keep the court focused on what is best for the child rather than on any so-called rights of either parent to spend time with their child. In fact, there is no legal concept of parenting rights in this context in Canadian law
- No weight is attached to the various criteria set out in the best interests test. This means that courts have considerable discretion in how they assign value to each factor. Of course, in doing so they are influenced by past court decisions, but they are also affected by the knowledge, perspectives and values of the individual judges who are making these important decisions.
Federal Law
In Canada, there is both federal and provincial/territorial legislation that govern family law.
The federal law is the Divorce Act, which sets out the requirements for obtaining a divorce, but also governs various corollary issues such as parenting arrangements, support and division of property.
The Divorce Act applies to anyone in Canada who is married and wants to get divorced; regardless of where the person got married, as long as they have lived in the jurisdiction where they are making their divorce application for at least 12 months. In 2019, the Divorce Act was significantly revised. In particular, provisions related to parenting arrangements for children were changed. These changes came into effect in March 2021.
Provincial Law (ON)
Every province/territory has its own family laws. These are quite similar, but not identical, from jurisdiction to jurisdiction.
In Ontario, the Children’s Law Reform Act and the Family Law Act (FLA) are the most important family laws.
The CLRA, as the name indicates, addresses issues related to children, including parenting arrangements and child support. This legislation was revised in 2020 to be consistent with the revisions to the Divorce Act, and the revised law came into effect in March 2021.
Language
In the past, the terms custody and access were used to describe post-separation arrangements for children. Prior to the changes to both the Divorce Act and the CLRA in 2021, custody referred to decision-making responsibility for children, although very often the parent with this responsibility also had primary physical care of the children. Access referred to the time the children spent with the non-primary parent, who may or may not have had a decision-making role in their children’s lives.
Based on what was best for the children – not the parents – courts made orders for sole or joint custody, shared custody and access. Where safety was an issue, the access or the exchanges of children could be supervised.
However, these terms are no longer used in the legislation. Both the Divorce Act and CLRA have replaced those terms with new language: “parenting order,” “parenting time” and “decision-making responsibility.” We will use this new language as we discuss the best interests of the child test in both the Divorce Act and the CLRA.
The CLRA best interests of the child test appears in section 24. It sets out the factors the court is required to consider when determining parenting arrangements for children after their parents separate or, in some situations, when their parents have never lived together. The factors apply to every situation; however, the weight given to each of them in relation to the others depends very much on the facts of the individual case.
Our recent webinar explores the test in greater detail, discussing the role of family violence in determining what is in a child’s best interests, as well as evidence that would suport a woman’s case when she is dealing with an abusive ex-partner
