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The best interests of the child principle

The “best interests of the child” is a legal principle that outlines how to make decisions about children in a family law issue.

Family laws in Canada are based on this core principle to help decision-makers keep children safe, healthy and happy. The law sets out the factors a decision-maker must consider before they make a choice that will affect a child.

On this page, “parent” refers to parents and guardians.

Need to know

  • Parents, guardians, the court and others who are making decisions about a child must make that decision in the best interests of the child.
  • The Family Law Act and the Divorce Act list factors for the decision-maker to analyze to make sure the final decision is in the child’s best interests.
  • All decision-makers must follow the best interests of the child principle when making decisions about a child following a separation.
  • The court must follow the best interests of the child principle when making decisions about who a child’s parents or guardians are.

What is the best interests of the child principle

The “best interests of the child” is a core principle in family law. It says that all decisions about a child must be in the child’s best interests, not in the interests of the parents, guardian or some other person. It applies to all decision-makers, including the courts, parents, guardians, mediators and arbitrators.

Family laws list many factors for a decision-maker to look at when making a decision about a child.

Learn how to co-parent after separation

Parenting After Separation (PAS) is a free online course created by the Government of Alberta to help parents learn how to communicate with each other after a separation. The court encourages every parent to take it even if the court does not order it.

Once you have completed PAS, you can take a second course called Parenting After Separation for Families in High Conflict.

The Alberta Family Wellness Initiative has a free Brain Story course that parents and professionals can take to better understand a child’s brain and trauma. It also shares how a parent’s behaviours and decisions impact their children.

When to analyze the best interest of the child factors

Any decision-maker must analyze these factors before making a decision for the child. Examples of decisions include:

Even if you and the other parent are making a parenting plan or separation agreement without going to court, you should go through each part of your agreement to make sure it is in the child’s best interests, not in your best interest.

If you and the other parent cannot agree on what is in the child’s best interests, there are other options to resolve the dispute before going to court. Court takes time and money and should always be a last resort.

Factors decision-makers must consider

The law lists factors to consider when making a decision for a child. Decision-makers must look at each factor to help them decide what is in the best interests of the child.

The factors are described below. You can also find them in section 18(2) of Alberta’s Family Law Act and section 16 of Canada’s Divorce Act.

The child’s physical, psychological and emotional needs, including their need for stability

Think about the child’s age and stage of development and whether they have physical or mental health needs.

The history of care for the child

Think about who raised the child so far and who is caring for the child now. Consider also whether a parent has had serious difficulty meeting the needs of the child, for example, if Children’s Services has been involved.

The child’s cultural, linguistic, religious and spiritual upbringing and heritage

Think about whether the child is connected to or should connect to their religion, culture or language, and how they will continue these practices. This factor is especially important when the child is Indigenous.

The child’s views and preferences, where appropriate to consider

Think about whether it is appropriate to seriously consider the child’s views and preferences given their age and decision-making ability. For example, consider whether the child can think through the pros and cons of a decision.

Any plans proposed for the child’s care and upbringing

Think about what the plan is to care for the child and whether the plan shows an effort to maintain or improve the relationship between the child and their parents.

Any family violence

Think about how any family violence affects:

  • the safety of the child and other family and household members
  • the child’s general well‑being
  • the ability of the person who engaged in the family violence to care for and meet the needs of the child
  • how appropriate it is to require guardians to work together on issues about the child

The nature, strength and stability of the child’s relationships

Think about the child’s relationship with each person living in their house as well as with other significant people in the child’s life.

Each parent or guardian’s ability and willingness to care for and meet the needs of the child, and to communicate and co‑operate on issues about the child

Think about whether the parents or guardians are able and willing to provide for the child. Consider also whether they can proactively communicate with each other if an issue comes up that affects the child.

The benefit to the child of building and maintaining meaningful relationships with each guardian or proposed guardian

Think about how the relationships will benefit the child and what the child thinks of the guardian or proposed guardian.

The ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship

Think about whether a parent has a history of being aggressive or unreasonable in their positions and whether they make good choices as a guardian. Also consider whether they participate in the decision-making process with the other parent/guardian in a timely way.

Think about whether the court has granted any emergency protection orders, restraining orders or other no contact orders for people who spend time with the child. Also consider if there are any pending criminal charges or other criminal or civil court proceedings that could affect the child.

This information will affect what time the child spends with the person and if someone else should supervise the parent and child during that time.

Potential issues

You and the other parent cannot agree on what is in the child’s best interests.

If you cannot agree, you can get help from a professional to resolve the issue without going to court. If that doesn’t work, you can ask the court to make a decision on what is in the child’s best interest, based on the evidence the court has.

You don’t think the court’s decision is in your child’s best interests.

You may be able to appeal the court’s decision. You only have a short timeframe to make an appeal, so it is a good idea to get legal support right after the court makes its decision.

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