“In summary, as a matter of statutory interpretation, the Divorce Act mandates that, in decisions of custody and access, the sole consideration be the best interests of the child. The focus must remain at all times on the child, not the needs or interests of the parents, and parental rights play no role in such decisions except in so far as they are necessary to ensure the best interests of the child.
The custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well‑being of the child. Parental authority rests with the custodial parent, not for his or her own benefit, but in order to enable that parent to discharge effectively the obligations and responsibilities owed to the child.
As set out in the Act, maximum contact between the child and the non‑custodial parent is a worthwhile goal which should be pursued to the extent that it is in the best interests of the child. Generous and unrestricted access, which is the norm, should be favoured except when such access would not be in the best interests of the child. However, ongoing conflict between parents which adversely affects the child must be minimized or avoided, as it is the single factor which has consistently proven to be severely detrimental to children upon separation or divorce.
The best interests of the child must be approached from a child‑centred perspective. It is not simply the right to be free of significant harm. It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well‑being and the milieu in which the child lives.
Where the question of restrictions on access arises, the best interests of the child must be determined by considering the “condition, means, needs and other circumstances of the child” as required by the Act. The totality of these circumstances must be considered. Nothing in the Act suggests that harm should be the controlling factor. To adopt the harm standard would be to invert the focus of the best interests test and place the risk of error on the child, contrary to the objectives of the Act.
Expert evidence, while helpful in some cases, is not routinely required to establish the best interests of the child. That determination is normally possible from the evidence of the parties themselves and, in some cases, the testimony of the children involved.
Freedom of religion and expression are fundamental values protected by the Charter. However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter. The Charter has no application to private disputes between parents in the family context, nor does it apply to court orders in the area of custody and access. While a child’s exposure to different parental faiths or beliefs may be of value, when such exposure is a source of conflict and is not in the best interests of the child, such exposure may be curtailed.”
Young v. Young, [1993] 4 SCR 3, 1993 CanLII 34 (SCC) per L’Heureux-Dubé.