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“Best Interests of the Child”: What does this really mean?

Published: October 17, 2013

Last Updated: September 8, 2025

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“Best Interests of the Child”: What does this really mean?
“Best Interests of the Child”: What does this really mean?

In making a custody determination, the polar star that guides the court’s decision is the best interests of the child. This concept of the best interests of the child is a legal standard, and in order to apply it to your custody proceedings, a judge will have to consider various factors. This article is designed to give you an idea of what the best interests of the child are, and how the courts make such a determination.

It is important to note that the best interests of the child can frequently change. It is a fluid concept that considers the physical, emotional, intellectual, moral, and social wellbeing of the child. Additionally, the court must consider both the short term, daily, wellbeing of the child and also long term needs. What is best for the child at age three might not be the same at age ten. Moreover, the parent’s situations are fluid as well, jobs might change, parents re-marry, and sometimes a parent might relocate. As you might imagine, determining the best interests of the child can be quite a difficult task.

Factors the Court Considers

The court will consider a myriad of factors; there is no comprehensive list of factors that guide the court in determining the best interests of the child. Several cases provide a list of applicable factors, but the judges are free to consider any factor they deem relevant. And in fact, each judge will have her own background and attitude that can also influence the decision. There are three factors, however, that are universally applied by the courts.

First is the concept of preserving the status quo. This idea holds major relevance when the court is asked to make an interim custody order, however is less compelling for non-interim orders. Status quo refers to both the geographic location of the child as well as the relationships and way of life established for the child. Preserving the status quo simply means to make a decision that will keep the child in the most similar situation to what they are currently experiencing. Where the child has currently been living and the nature and extent of the child’s communication and exposure to each parent will be considered in determining the best interests of the child.

Second, the court will consider who was the primary caregiver during the marriage. The primary caregiver is the parent who typically took the child to medical appointments, fed the child, put the child to bed, and made decisions regarding health, safety, and education. The court will be more inclined to grant primary custody to the primary caregiver. The primary caregiver is also the person who handled the more mundane aspects of parenthood, such as haircuts, hygiene and birthday party arrangements. There will be a preference to allow this person to enjoy day-to-day custody. However, in some instances, particularly when both parents work, or both parents are equally involved in the child’s life, neither parent can truly be classified as a primary caregiver.

The third factor that the courts give great weight to is the fact that the law favours keeping siblings together. The court can typically not be compelled to split up siblings. Additionally, there is a preference to maintain relationships between stepsiblings. The court will consider maintaining a relationship with a sibling to be in the best interest of the child.

In addition to these three factors the court will consider the weight and credibility of all evidence presented in formulating a decision of what arrangement will be in the best interests of the child. Evidence can speak to everything from the child’s views, to the religious and cultural upbringing of the child, and the physical and mental health of the child. Basically the court will take a look at anything and everything that might be relevant in helping decide a living arrangement that will truly be in the child’s best interests.

As stated previously, it’s important to remember that this is a fluid and ever-changing standard. A child’s physical and emotional needs are constantly changing, and a parent’s ability to provide may also change. Custody can be revisited and the court can chose to modify or vary an existing order if it believes doing so is in the best interest of the child.

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - child custody & access

Ontario law does not specify the age at which a child can decide which parent to live with. At most, the Court may consider the preference of the child but that does not necessarily mean that the Court will act favorably on it. The court will consider the child’s maturity, ability to articulate their desires, and the reasoning behind their views when seeking their opinion.

If a parenting plan is included in your court order under the Divorce Act, the document will be legally binding.

In order to change your child’s last name, you will have to be the child’s parent with legal custody or be the legal guardian of the child. In order to change the child’s last name, you will have to provide notice to anyone who has legal access to the child, and that may include your ex-spouse.

In most cases, the answer is no. However, there can be some exceptions that the mother can build a case upon. These include the father putting the child at risk, non-compliance with the court order, or a history of violence by the father.

Creating a custody plan with a narcissistic ex-partner is a task best left to legal professionals. While there might not be one way to deal with a narcissistic ex, there are things that you can do to turn the tables on a narcissistic co-parent. The best way to prevent problems is to go with no contact or limited contact with your ex-partner and put everything in writing if you must only communicate via email or text message to record statements and harassment.

Let us consider that the “moving away” is relocation and not just a change in residency.

Then, let us qualify that the mother will take your child with her.

If the mother is the primary caregiver of the child, you may oppose the relocation by applying the principles laid down under the Gordon vs. Goertz case. You must present your case strongly as to why potentially cutting your child’s relationship as the primary caregiver is to your child’s best interest. This situation falls under the purview of Section 16.93(2) of the Divorce Act.

If both you and the mother have equal parenting time over your child, the mother of the child has the burden of proof as to why the relocation is for the best interest of your child. This situation falls under the purview of Section 16.93(1) of the Divorce Act.

If there is no Court ordered, approved, or awarded parenting time or separation agreement, as contemplated under Section 16.93(3) of the Divorce Act, the mother has the burden of proof to show that relocation is in the best interest of your child.

Note that even if the burden of proof is not laid upon you, it still recommended that you present a strong opposition to the relocation.

Yes, it is possible for your ex to prevent you from relocating with a child you share, although this will likely plan on your parenting arrangements and decision-making responsibility. If you cannot agree about a relocation, a court will decide based on the child’s best interests.

Generally, you need to provide your ex with 60 days’ written notice of your relocation plan, and you must obtain consent or a court order to move the child. A lawyer can help you navigate this process. Our divorce lawyers will guide you through the application and court order process.

Yes, but they will need to establish paternity, especially if the father and the mother separate. Here are the ways to establish paternity as recognized by the court:

  • Act of birth
  • Presumption of paternity
  • Uninterrupted possession of status
  • Voluntary declaration

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