Divorce Act

Marginal note:Best interests of child

• 16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

• Marginal note:Primary consideration

  (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

• Marginal note: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,

    • (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

    • (ii) 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

  • (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

• Marginal note:Factors relating to family violence

  (4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

  • (a) the nature, seriousness and frequency of the family violence and when it occurred;

  • (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

  • (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

  • (d) the physical, emotional and psychological harm or risk of harm to the child;

  • (e) any compromise to the safety of the child or other family member;

  • (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

  • (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

  • (h) any other relevant factor.

• Marginal note:Past conduct

  (5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

• Marginal note:Parenting time consistent with best interests of child

  (6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

• Marginal note:Parenting order and contact order

  (7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.