“Currently, the Divorce Act does not include a list of criteria for courts to consider in applying the “best interests of the child” test, apart from the general requirement to refer to “the condition, means, needs and other circumstances” of the child and to give effect to the principle of maximum contact with both parents. The absence of specific criteria in the Divorce Act explains why this court frequently looks to the factors listed in s. 24 of the CLRA in divorce cases.
One of the amendments to the Divorce Act that will be introduced by Bill C-78 is the following non-exhaustive list of criteria for the court to consider when applying the “best interests of the child” test in parenting disputes:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Although Bill C-78 is not yet in effect, this list of criteria enacted by Parliament is nevertheless relevant and useful in deciding the issues before me because the criteria are drawn from the jurisprudence. The list effectively summarizes the case-law to date. I will therefore take the Bill C-78 list of criteria into consideration.
It is important to note that not every criterion listed in s. 24 of the CLRA or in Bill C-78 will be relevant in every case. Moreover, the lists are not exhaustive. There may be additional relevant criteria that should be considered, depending on the specific circumstances of each case.
No single criterion should be given priority in determining a child’s best interests. The weighing of each criterion when making parenting orders will always depend on the individual circumstances of the child.”