As family lawyers, we often advise clients on how to go about custody negotiations. In the event you require the assistance of the Court to help resolve issues involving your children, you will likely hear the Court use the term “best interests”.  The child’s best interest is the primary consideration of the Court when determining issues of custody, parenting arrangements, contact time, or interaction time with a child.  But how does the Court define or determine what is in your child’s “best interest”?

About the Parenting and Support Act in family law

If you have a child outside of a marriage, the Parenting and Support Act will apply to your case.  Section 18(6) of the Parenting and Support Act provides a non-exhaustive list* of factors that the Court will consider in determining the best interest of the child.  Included in the list of factors under the Parenting and Support Act are the child’s needs (physical, emotional, social and educational); the history of care of the child; each parent’s willingness to support the other parent’s relationship with the child; the child’s views (only if appropriate given their age and stage of development); the child’s cultural and religious upbringing and heritage; and the impact of family violence. 

About the Divorce Act in family law

If you have a child within a marriage, the Divorce Act will apply to your case.  While the Divorce Act currently does not provide the same non-exhaustive list as the Parenting and Support Act, case law has evolved to provide a similar list.  In Foley v Foley, 1993 CanLII 3400 (NS SC), seventeen factors were listed to be considered in divorce cases when determining the child’s best interest.  These factors are very similar to those listed in the Parenting and Support Act.

 When determining the child’s best interest, the Court takes a fact-specific approach to determine which factors should be given more weight based on the circumstances of each case.  For instance, a child’s views may not be considered in a case involving a five-year-old child; however, in a different case where the child is a teenager and a Wishes of the Child Assessment has been completed, the child’s views will likely be taken into consideration by the Court.

It should also be noted that many factors will be considered as a whole in the best interest analysis, rather than one factor being determinative of what is best for the child.  For instance, while a child’s views will likely be taken into consideration if there is a Wishes of the Child Assessment, their views will not be determinative of the whole best interest analysis. 

*Non-exhaustive means that other factors outside of those listed under section 18(6) of the Parenting and Support Act may be considered by the Court, should they be introduced by one of the parents.

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