The Best Interests of the Child in Ontario Family Law

What Is the "Best Interests of the Child" Test?

The best interests of the child test is the legal standard Ontario courts must apply to every decision about parenting — whether that means who has decision-making responsibility for a child, how parenting time is shared, or whether someone else should have contact with a child. The law is explicit that the child's interests are the only thing being decided — not what either parent wants, not what seems fair between the parents, and not which parent "deserves" more time.

In practice, this means a court looks at a broad set of factors related to the specific child's circumstances, rather than applying a fixed formula or starting from an assumption that any particular arrangement — equal time, one primary home, or anything else — is automatically best. Two families with similar facts can end up with different parenting arrangements because the best interests analysis is meant to be individualized to that child.

Where This Test Comes From

The best interests test comes from legislation, not from a single court decision, and the source of law depends on the parents' situation.

For parents who are married and divorcing, the test is set out in the federal Divorce Act. For parents who were never married, or who are separating without seeking a divorce, the parallel test is set out in Ontario's Children's Law Reform Act. Both laws were substantially updated effective March 1, 2021, and since that update the two lists of factors are closely aligned, so the practical analysis is similar regardless of which law applies to a particular family.

Both laws describe the list of factors as open-ended — a court can also consider other factors relevant to a child's circumstances that are not specifically listed, and is not required to treat every listed factor as equally significant in every case.

Primary Consideration: Safety, Security, and Well-Being

Both the Divorce Act and the Children's Law Reform Act single out one factor as more important than the rest: when weighing the various best-interests factors, a court must give primary consideration to the child's physical, emotional, and psychological safety, security, and well-being.

This does not mean other factors are ignored — it means that where a genuine conflict exists between the child's safety and some other consideration, safety, security, and well-being are meant to carry the most weight. This primary-consideration rule is closely tied to how courts treat family violence, discussed further below.

The Child's Needs and Circumstances

Beyond the primary consideration, the law directs courts to look at "all factors related to the circumstances of the child." Several of these relate to the child's own needs and history:

• The child's needs, given their age and stage of development.
• The nature and strength of the child's relationships with each parent, with siblings, with grandparents, and with any other person who plays an important role in their life.
• The history of care of the child — in general terms, who has been involved in day-to-day caregiving and how that care has been shared.
• Any plans proposed for the child's care going forward, including how each parent proposes to meet the child's needs.

These factors are meant to build a realistic picture of the specific child's life, rather than treat every child of a given age the same way.

Relationships and Willingness to Support Them

A related factor is each parent's ability and willingness to care for and meet the child's needs, and — separately — each parent's willingness to support the development and maintenance of the child's relationship with the other parent. Courts also generally consider each parent's ability and willingness to communicate and cooperate with the other parent on matters affecting the child.

In general terms, a parent who actively supports their child's relationship with the other parent is viewed favourably under this factor, while a parent who actively undermines that relationship without good reason may not be. That said, this factor is weighed together with every other factor — including any history of family violence — rather than treated as decisive on its own, since supporting a relationship is not appropriate in every situation, such as where safety concerns exist.

The Child's Own Views

A child's own views and preferences are one of the factors a court may consider, but the weight given to those views depends on the child's age and maturity — a general legal principle sometimes referred to as giving a child's views "due weight." There is generally no fixed age in Ontario at which a child's stated preference becomes automatically controlling, and courts approach this factor differently depending on the child, the family, and the process used to hear from the child. For more on how a child's perspective can be brought into a case, see voice of the child.

Family Violence as a Factor

Since the 2021 updates to both the Divorce Act and the Children's Law Reform Act, family violence and its impact on a child is a factor courts are specifically directed to consider — reflecting the primary-consideration rule for safety described above. In general, courts look at matters such as:

• The nature, seriousness, and frequency of the family violence, and when it occurred.
• Whether there is a pattern of coercive or controlling behaviour toward a family member.
• Whether the family violence is directed toward the child, or whether the child is directly or indirectly exposed to it.
• The physical, emotional, and psychological harm, or risk of harm, to the child.
• Any compromise to the safety of the child or of another family member.
• Whether the person responsible for the family violence has taken any steps to prevent further violence and to improve their ability to care for and meet the needs of the child.

Family violence is generally described broadly under this framework — it is not limited to physical violence, and can include a pattern of coercive or controlling conduct. Because this is a complex and evolving area, and because every situation is different, this section describes the general framework only; if family violence is a concern in your situation, prioritize your safety and consider speaking with a professional — see also Urgent Help & Safety.

Cultural, Linguistic, and Religious Considerations

Courts are also directed to consider the child's cultural, linguistic, religious, and spiritual upbringing and heritage, including — where applicable — any Indigenous upbringing and heritage. In general terms, this factor recognizes that a child's identity and background can be relevant to what arrangement genuinely serves their interests, alongside every other factor discussed above.

Finally, the law also allows a court to consider any relevant civil or criminal proceeding, order, condition, or measure that bears on the child's safety, security, or well-being, reinforcing that the best-interests analysis is meant to take in the full picture of a child's circumstances rather than a narrow checklist.

How This Test Applies to Parenting Time and Decision-Making

The same best-interests factors apply whether a court (or parents negotiating on their own) is working out decision-making responsibility — who has authority over major decisions like health care, education, and religious upbringing — or parenting time — the schedule of when a child is in each parent's care. The factors do not change between these two questions, but how they play out can differ: for example, a strong, cooperative relationship between parents may support shared decision-making, while the same factors applied to a very young child's day-to-day routine might point toward a different parenting time schedule. Many separating parents work through both questions together in a written parenting plan, which can also be a useful way to show a court the specific plans proposed for a child's care. Where parents cannot agree, either issue can be raised as part of a family court case.

Frequently Asked Questions