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Table
of Contents| Introduction
| Chart i. of v. | Previous|
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i. Best Interests of the Child
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| PROVINCE / STATUTE
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LEGISLATIVE PROVISION
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Canada
Divorce Act, R.S.C. 1985 (2nd Supp.), c.3.
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-s. 16(8) The court, in making an order for custody or access, shall only take into consideration the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
-s. 16(4) the court may make an order under this section granting custody of or access to any or all children of the marriage to any one or more persons. (5) unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries and to be given information, as to the health, education and welfare of the child. (10) in making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. For that purpose, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
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Alberta
Domestic Relations Act, R.S.A. 1980,
c. D-37.
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-s. 56(2) In making an order for custody or access, the court shall have regard
a) to the welfare of the minor
b) to the conduct of the parents, and
c) to the wishes as well of the mother as of the father.
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British Columbia
Family Relations Act, R.S.B.C. 1979,
c. 121.
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-s. 24.1 Factors: a) the health and emotional well-being of the child including any special need for care and treatment;
b) where appropriate, the views of the child;
c) the love, affection and similar ties that exist between the child and other persons;
d) education and training for the child; and
e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise these rights and duties adequately.
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Manitoba
The Family Maintenance Act, R.S.M. 1987, c. F.20 as amended.
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-Best Interests (s. 2 (1)) may include:
-s. 2(2) the views and preferences of the child where appropriate.
-s. 3 may include investigation by a qualified third party to determine best interests.
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New Brunswick
The Child and Family Services and Family Relations Act, S. N. B. 1980, c. C-2.1 re-titled Family Services Act, S.N.B. 1980, c. F-2.2, as amended by S.N. B. 1996, c. 13.
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-Best Interests (s. 129(2)) factors,
-s. 1: a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;
c) the effect upon the child of any disruption of the child's sense of continuity;
d) the love, affection and ties that exist between the child and each person to whom the child's custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child, and, where appropriate, each grandparent of the child;
e) the merits of any plan proposed by the Minister under which he could be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;
f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and
g) the child's cultural and religious heritage.
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Newfoundland
Children's Law Act, R.S.N. 1990, c. C-13, as amended by S.N. 1995, c. 27.
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-Best Interests (s. 31(1) and s. 72).
-Factors s. 31(2):
a) the love, affection and emotional ties between the child and, i) each person entitled to or claiming custody of or access to the child; ii) other members of the child's family who live with the child; and iii) persons involved in the care and upbringing of the child; b) the views and preferences of the child, where the views and preferences can reasonably be ascertained; c) the length of time the child has lived in a stable environment; d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child; e) the ability of each parent seeking the custody or access to act as a parent; f) plans proposed for the care and upbringing of the child; g) the permanence and stability of the family unit with which it is proposed that the child will live; and h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
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Northwest Territories
Domestic Relations Act, R.S.N.W.T. 1988, c. D-8
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-s. 28(2) Court shall have regard to:
a) the welfare of the child;
b) the conduct of the parents; and
c) the wishes of each parent.
-s. 32(2) Court may consult the wishes of the child.
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Nova Scotia
Family Maintenance Act, R.S.N.S. 1989,
c. 160.
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-s. 18(5) welfare of the child is the paramount consideration.
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Ontario
Children's Law Reform Act, R.S. O. 1990, c. C.12.
Amended by: 1992, c.
32, s. 4; 1993, c. 27, Sched.; 1996, c. 2, s. 63; 1996,
c. 25, s. 3; 1998, c. 26, s. 101; 1999, c. 6, s. 7;
2000, c. 33, s. 21.
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-s.19. The purposes of this Part are,
(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access
to and guardianship for children will be determined on the basis of the best interests of the children;
-s. 20(2) A person
entitled to custody of a child has the rights and
responsibilities of a parent in respect of the person of
the child and must exercise those rights and
responsibilities in the best interests of the
child.
- Merits of application for custody or
access
-s. 24.(1) The merits of an application under
this Part in respect of custody of or access to a child
shall be determined on the basis of the best interests
of the child.
- Best interests of child
- s.
24.(2) In determining the best interests of a child for
the purposes of an application under this Part in
respect of custody of or access to a child, a court
shall consider all the needs and circumstances of the
child including,
(a) the love, affection and
emotional ties between the child and,
(i) each person
entitled to or claiming custody of or access to the
child,
(ii) other members of the child's family who
reside with the child, and
(iii) persons involved in
the care and upbringing of the child;
(b) the views
and preferences of the child, where such views and
preferences can reasonably be ascertained;
(c) the
length of time the child has lived in a stable home
environment;
(d) the ability and willingness of each
person applying for custody of the child to provide the
child with guidance and education, the necessaries of
life and any special needs of the child;
(e) any
plans proposed for the care and upbringing of the
child;
(f) the permanence and stability of the family
unit with which it is proposed that the child will live;
and
(g) the relationship by blood or through an
adoption order between the child and each person who is
a party to the application. |
Prince Edward Island
Custody Jurisdiction and Enforcement Act, R.S. P.E. I. 1988, c. C-33.
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-Best Interests s. 2a)
-s. 8(1) court shall consider the child's views and preferences where possible.
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Quebec
Civil Code of Quebec, S.Q. 1991, c. 64.
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-Art. 33 every decision concerning a child shall be taken in light of the child's interest and the respect of his rights. Consideration is given, in addition to the moral, intellectual, emotional and material needs of the child, environment, and to other aspects of his situation.
-Art. 34 The court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it.
-Art. 604 In the case of difficulties relating to the exercise of parental authority, the person having parental authority may refer the matter to the court, which will decide in the interest of the child after fostering the conciliation of the parties.
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Saskatchewan
Children's Law Act, S.S. 1990, c. C-8.1.
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-s. 8 A custody order will have regard only for the best interests of the child, and will be awarded after considering the following factors: s. 8(1)(a) i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child; ii) the personality, character and emotional needs of the child; iii) the physical, psychological, social and economic needs of the child; iv) the capacity of the person who is seeking custody to act as legal custodian of the child; v) the home environment proposed to be provided for the child; vi) the plans that the person who is seeking custody has for the future of the child; and vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child.
b) the court will not take into consideration the past conduct of any person unless the conduct is relevant to the ability of the person to act as a parent of a child; and c) the court will make no presumption and draw no inference as between parents that one parent should be preferred over the other one on the basis of the person's status as a father or mother.
-s. 9 An access order will have regard only for the best interests of the child, and will be awarded after considering the following factors: s. 9(1)(a)i) the quality of the relationship that the child has with the person who is seeking access; ii) the personality, character and emotional needs of the child; iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and iv) the wishes of the child, to the extent that the court considers appropriate, having regard to the age and maturity of the child.
-s. 6(5) when making an order for custody or access, the court shall a) give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact.
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Yukon
Children's Act, R.S.Y. 1986, c. 22.
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-Best Interests (s. 30(1))
Factors: a) the bonding, love, affection and emotional ties between the child and, i) each person entitled to or claiming custody of or access to the child; ii)other members of the child's family who reside with the child, and iii) persons involved in the care and upbringing of the child, b) the views and preferences of the child, where such views and preferences can be reasonably ascertained, c) the length of time, having regard to the child's sense of time, that the child has lived in a stable environment, d) the ability and willingness of each person applying for custody of the child to provide the child with guidance, education, the necessaries of life and any special needs of the child, e) any plans proposed for the care and upbringing of the child, f) the permanence and stability of the family unit with which it is proposed that the child will live, and g) the effect that awarding custody or care of the child to one party would have on the ability of the other party to have reasonable access to the child.
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