Best Interests of the Child

What does ‘best interests of the child’ mean?

This is the test that the court uses to make decisions about children. The judge must decide what is best for the children, not what is best for the parents.

The Divorce Act (federal law) and the Parenting and Support Act (provincial law) include a list of factors that judges must consider when making decisions about the best interests of a child.

Judges will consider all relevant circumstances.  They are not limited to considering only the factors on the list because decisions must be made based on each child’s needs.

In determining the best interests of the child, the list of factors a judge must consider in the Divorce Act (federal) and Parenting and Support Act (provincial) are similar, but not exactly the same. Generally, a judge must consider the child’s:

• needs, given their age and stage of development, including the child’s physical, emotional and psychological safety, security and well-being

• relationship with each parent

• relationships with siblings, grandparents and other important people in their lives

• care arrangements before the separation

• future plans for care of the child

• views and preferences, if appropriate based on the child’s age and stage of development and the circumstances of the case

• cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

Other factors the judge must consider include each parent’s ability and willingness to:

• care for the child

• support the child’s relationship with the other parent

• cooperate and communicate about parenting issues.

When a parent is seeking to relocate with a child there are additional best interest considerations. Click here to learn about relocation.

A judge must also consider family violence including:

• any family violence and its impact on:

• the ability and willingness of any person who did the family violence to safely care for and meet the child’s needs, and

• whether it would be appropriate to make an order that would require people to cooperate on issues affecting the child

• any existing civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.  Examples are a peace bond, emergency protection order, criminal charges for violent offences.

If there is family violence the court must look at:

• the nature of the family violence

• how recent it is

• how often it happened

• the harm caused or potential for harm

• steps taken to prevent the violence

• anything else the court thinks is relevant.

For more on family violence, click here.

Divorce Act

Parenting and Support Act

It is always recommended you obtain legal advice.  Click here for information about legal support and advice options in Nova Scotia, including no- and low-cost services.