“In the best interests of the child” is the legal test the courts turn to time and again when faced with cases involving children. In this article, we will focus on this test as it relates to the issue of custody.

In Ontario, custody is governed by either the Divorce Act or the Children’s Law Reform Act, depending on the circumstances. If the child, who is the subject of a custody case, is a child of marriage and the parents have begun divorce proceedings, the court looks to the Divorce Act. In all other instances (unmarried parents, separating parents who have not started divorce proceedings and third party applicants) the court relies on the Children’s Law Reform Act. However, in both instances, the law is clear that decisions regarding custody are to be governed only by what is in the best interests of the child.

At first glance this test seems straightforward. However, neither of the relevant statutes provides a definition of the test, although both provide a list of factors which should be taken into consideration. The Divorce Act states that the best interests of the child are to be “determined by reference to the conditions, means, needs and other circumstances of the child.” Unfortunately this does not provide much concrete direction.

The Children’s Law Reform Act does offer more helpful criteria. In determining the best interests of the child under this Act, the court shall consider all the needs and circumstances of the child, including the following factors.

1. The child’s relationship, including love, affection and emotional ties, with the person applying for custody as well as the relationship with the extended family and those people the child will come into regular contract with, such as the applicant’s new partner.

2. If, at the time of the application, the child has been living in a stable environment that meets his or her needs, the court will be reluctant to disturb the status quo. This factor is often decisive in custody applications.

3. The applicant’s ability and willingness to provide guidance, education, necessaries of life, as well as any special needs of the child are all important facts. In addition, the court wants to assure itself that the custodial parent will promote a relationship between the child and the non-custodial parent.

4. The court is also interested in the plans for the child’s care and upbringing as proposed by the applicant. This includes plans both in the short term and in the reasonably foreseeable future.

5. The permanence and stability of the applicant’s family unit is another important consideration in figuring out what is in the best interests of the child. It is the court’s desire to keep further upheaval in the child’s life to a minimum.

6. Although blood ties are not as important as they once were, they remain a factor to be taken into account. The court will also attempt to ensure that the development of the child’s cultural identity will not be disrupted.

7. If they can be adequately determined, the court will be interested in the views and preferences of the child. However, it is not appropriate for young children to bear the onus of making custody decisions.

The decision by parents to live apart, can have a profound effect on their children. Frequently the court is called upon to intervene. In these instances, the court’s only concern is to determine the living arrangements that will be in the child’s best interests.