The Divorce Act Changes Explained
Best interests of the child
Factors to be considered
(Section 16(3), Divorce Act)
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
- the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
What is the change
To decide what is in the best interests of the child, courts must consider all of the circumstances, including those set out in the list of factors in this section.
Reason for the change
A list of best interests of the child factors will provide clarity and promote a shared understanding among parents, family justice professionals, lawyers and judges. All but one of the provinces and territories include such a list in their family laws.
The list is not exhaustive; a court may consider factors not on the list. A court may also prioritize one factor over another based on the circumstances of the case, although s 16(2) requires that courts always give priority to the child’s safety, security and well-being.
March 1, 2021.
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