TIP: Custody = Best Interests of the Child

Canadian legislation mandates a Court to consider 'what is in the best interest' of a child when making a decision about custody, access and many other issues related to parenting children.

In other words, the Court is to put aside considerations of what a parent wants, what would be convenient to the parent, a parent's sense of entitlement, allegations that one parent is of poor character etc. Instead, the Court must try to look at the world through the eyes of the child in question and determine from that child centred perspective what is best for that child.

Although the legislation does not have a sublist of factors for a court to consider, certain key concepts arise, for example:

- the need for maximum contact between the child and both parents, provided that is considered best for the child;
- stability of routine is important;
- the pattern of parenting during and post-separation is highly relevant;
- maintaining bonds between a child and each parent consistent with what the child is used to;
- the wishes of the child, although this can be limited to older children.

The Court is directed to avoid considering matters of conduct in this analysis. In other words, if a child lives with one parent, is stable and bonded to a parent, that is far more relevant to the court than the fact that one parent thinks the other parent is bad, a cheater, a liar, etc.

It is often hard for a parent to accept the fact that, although the other parent may be highly flawed from an adult perspective, or the former spouse's perspective, if the evidence shows that it is best for the child to be with that parent, the court will overlook the flaws.

For parents who do want scrutiny of all factors, more in depth custody analysis may be available, but this tends to be the more complicated, more expensive, more time consuming and intrusive route. Also, this commentary is intended to give a general comment on custody and may not apply to all situation: there are always exceptions.

Obtaining legal advice prior to or as quickly as possible after separation is critical because of the fact that patterns of parenting post-separation are highly relevant.