Best Interests of the Child

The only factor that our laws focus on is what is best for the child, not what each parent wants or needs. There are different laws that apply depending on whether the parties are asking for a divorce but regardless of which law applies the best interests of the child is still the only thing the court will consider if asked to make an order. For more information about the different family laws and when they apply see Family Law Basics.

The law does not favour mothers over fathers or fathers over mothers, even in cases involving very young children. The law doesn’t favour keeping sons with their fathers or keeping daughters with their mothers, either.

There is no particular type of parenting arrangement that is presumed to be in the child’s best interest. For example, courts do not assume that a child spending an equal amount of time with each parent is the best arrangement. Parents must be able to show that what they want for their children is in the children’s best interests.

A parenting order must above all protect the child’s physical, psychological and emotional safety, as well as their security and well-being to the greatest extent possible. Beyond this the law gives the courts some guidance about what should be taken into account when deciding what is in the child’s best interests, but also requires courts to consider each child’s unique circumstances. The factors listed below are some factors the court must consider but the court can also consider anything that may affect the best interests of the child.

The following factors must be considered when determining the best interests of a child:

• the needs of the child based on their age and stage of development, such as the need for stability
• the nature and strength of the child’s relationship with each parent and others who play an important role in the child’s life, including siblings and grandparents
• each parent’s willingness to support the child’s relationship with the other parent
• history of care of the child
• the child’s views and preferences, while considering the child’s age and maturity in determining how much weight to give these factors
• the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
• any plans for the care of the child
• the ability and willingness of the parents and others that would be covered by the parenting order to care for and meet the needs of the child
• the ability and willingness of the parents and others that would be covered by the parenting order to communicate and cooperate, particularly with each other, on matters concerning the child
• any family violence
• any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child

Family violence is any behaviour by a family member towards another family member that:

• is violent
• is threatening
• forms a pattern of coercive and controlling behaviour
• causes a family member to fear for their safety or the safety of another individual

The behaviour does not need to be criminal for it to be family violence. In the case of a child, direct or indirect exposure to family violence is a form of family violence. The impact of witnessing family violence on a child is similar to the impact of being directly abused. Family members include any member of a child’s household, including someone one of their parents is dating if that person participates in family life.

If there is family violence the court must specifically consider the impact of family violence on:

• the ability of a party that has engaged in violence to care for and meet the needs of the child
• whether making a parenting order that requires cooperation between the parties would be appropriate given the history of family violence

In addition to anything the court considers to be relevant concerning the family violence, the court must take into account:

• the type, seriousness and frequency of family violence
• whether there is a pattern of coercive or controlling behaviour
• whether the family violence was directed at the child
• whether the child was directly or indirectly exposed to family violence
• any physical, psychological or emotional harm or risk of harm to the child
• any compromise to the safety of the child or other family member
• whether the family violence has caused any family member, including the child, to fear for their safety
• whether the person engaging in family violence has taken steps to prevent further violence and improve their ability to care for the child
• any other relevant factor