Custody & Access

Best Interests of the Child

Our laws concerning custody and access focus on what is best for the child, not what either parent wants or needs. These laws do 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 daughters with their mothers.

The law does not focus on how parents have behaved towards one another unless the behaviour affects the person’s ability to parent the child. Violent past behavior, even if it was directed at the other parent and not the child, can be considered as past conduct that does affect a person’s ability to be a good parent, depending on the circumstances. For more information see Safety.

When parents are unable to agree on what is best for their child and a court is asked to decide the matter, our laws say that the court must decide on the parenting arrangement that is in the best interests of the child. It is important to note that the law recognizes that every family situation is unique and what is best for a particular child in one family may not be what is best for another child in another family. There are, however, some general factors that a court will consider when determining the best interests of a child.

Understanding the factors the courts will look at may help parents reach an agreement without going to court. Knowing the factors the court will consider will also help parents who are going to court decide what parenting arrangement to ask for and explain to the court why this is in the best interests of their child.

Factors to be considered include things like…

  • the quality of the relationship each parent has with the child
  • how the child was cared for before the parents separated and how the child has been cared for since the separation
  • the parenting abilities of each parent
  • other close relationships the child may have, including those with other family members
  • the child’s physical, social, emotional, and financial needs
The assessment of the child’s best interest also involves a consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child’s relationship with his or her psychological parent has long been recognized by this Court. Supreme Court of Canada

Other factors the court may consider are things like the child’s personality or character, their cultural or religious needs, and each parent’s plan for the child’s future.

Courts are required to arrange custody and access so that the child has as much contact with both parents as is consistent with the child’s best interests. Courts will generally find that it is in the child’s best interests to have both parents involved in their life and that both parents have a role to play regarding issues such as discipline, schooling, cultural, religious or spiritual guidance, health matters and activities. They will consider each parent’s ability to allow, encourage and facilitate contact with the other parent, unless it would be harmful to the child. Different considerations may apply where there has been family violence. For more information see Safety.

Courts may also want some information about the child’s wishes, depending on the child’s maturity. Generally speaking, the wishes of an older and more mature child will carry more weight than the wishes of a younger, less mature child. However, the court will never just let the child decide where they want to live. Whatever the age of the child, the court will decide what is in their best interests.

There is no principle of law that the wish of a child is absolute and in itself determines the issue of custody. Such an approach would ignore the statutory mandate to “take into account only the best interests of the child.” In my opinion the correct approach is to take into account all of the circumstances, including the wish of the child. The weight to be given to that wish will depend on a number of things including the maturity of the child, experience and age of the child. The last will frequently, but not always, bear some relationship to the child’s maturity. However, in all instances the wish of the child must correspond with what is in his or her best interests if it is to be adopted and put into effect. Saskatchewan Court of Queen’s Bench

Interim Custody Orders

Sometimes one parent may apply to the court for an interim order for custody/access. This is an order that will be in place until a final order is made. In these cases the court must also consider the best interests of the child but this is considered in light of how the children are currently being cared for. Unless there is some risk of harm to a child, courts are reluctant to change a child care arrangement that has been in place for any length of time before the court application was made. Courts do not have access to the same detailed information about the child in these situations, so most often do not find it in the child’s best interests to change their current living arrangements until after there has been a full consideration of the issue when a final order is made.