Court Cases & Orders

“Best Interests” Test is Not About the “Highest Score Winning”, Ontario Court Says

Toddler boys sitting on deck with teddy bear
Written by Russell Alexander / (905) 655-6335

How Does the Court Consider the Best Interests of a Child?

In the course of resolving any legal dispute between parents that also impact a child, Family Court judges across the country are duty-bound at some point to ask themselves this question: What is in the best interests of the child?

In the realm of Family Law, it’s the predominant legal and factual test, and in our Blog over the years we have covered a host of cases that illustrate how it’s applied to diverse fact scenarios.

Just in the past few months alone, we’ve seen it routinely applied by judges who were asked to make determinations around how to split parenting time between former spouses. It also came to the forefront in more unique scenarios, such as determining whether and when a court can override the medical and health-care decisions of a mature minor.  It was also applied to determine whether an Ontario court can exercise its jurisdiction over non-resident parents who have left Canada and taken the child with them to another country.

Most recently, against the background of the COVID-19 pandemic, it was even be used by courts to determine whether a child should be vaccinated over the objections of one parent, and whether a child should spend time with a parent who refuses to get the vaccine.

Despite the frequent consideration of the best interest of the child in family law cases, the exact contours of the test are not clear.

In fact, its components and parameters were the focus of the Ontario court’s attention yet again in the recent decision in L.S. v. M.A.F., which started as a fairly-straightforward dispute between parents over parenting time and child support obligations.  The court took the opportunity to provide a handy round-up of the Test’s governing considerations and factors.

First, the court examined the provisions of the provincial Children’s Law Reform Act (the “CLRA”), which emphasizes that the beginning point for any court’s application of the Test involves giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being.   Then, the CLRA goes on to list more than a dozen bullet-point factors that a court must expressly consider, including the child’s needs, relationships with others, and cultural/religious heritage (among many others).  An extensive list of factors relating to family violence are also part of the required analysis.

Next, the court noted that there were additional principles and considerations that can be part of the Test, depending on the scenario.  For example:

  • A child should have as much time as possible with each parent consistent with the child’s best interests, but this principle “is subject to what is in the best interests of the children, given their ages, temperaments and stages of development”.
  • All other things being equal, a child should be entitled to have a parent in his or her life in a meaningful way – with in-person contact being more meaningful than virtual contact.
  • In determining the child’s best interests, it will often be important to determine whether a parent will follow the terms of a court order.

Finally – and even after setting out this lengthy slate of components – the court noted that the list of “best interests” considerations in the CLRA is not exhaustive.  Moreover, after citing a string of recent Ontario Family rulings, the court added:

It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child.

For the full text of this recent decision, see:

L.S. v. M.A.F., 2021 ONCJ 554

For the full text of the some of the other current cases cited in L.S. v. M.A.F., see:

White v. Kozun2021 ONSC 41

Pereira v. Ramos2021 ONSC 1737

Phillips v. Phillips, 2021 ONSC 2480

Wiafe v. Afoakwa-Yeboah2021 ONCJ 201

Ammar v. Smith2021 ONSC 3204

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.