The Best Interest of the Child Test

Custody and access is now called decision-making responsibility and parenting time.

When making any orders with respect to decision-making responsibility and parenting time, the court applies a legal test called the “Best Interests of the Child”. This means, a successful litigant will have convinced the court, typically through evidence and arguments, that the custody or access order is in the best interests of the child. Child custody lawyers rely strongly on this legal test. Some of the factors the court will consider in making this determination include:

  • Who has been the primary caregiver for the children
  • How much time does each parent spend with the children
  • How are the children’s relationships with each parent
  • Who can offer the most stable environment for the children
  • What is the proposed parenting plan for the children, including a plan for how the children will maintain their relationship with the other parent

How can a Family Lawyer help you?

Child custody Family lawyers help with issues related to:

  • Custody structures including sole, joint or shared custody.
  • Access issues related when and how much time the children spend with each parent
  • Communication arrangements related to how and when the children will communicate with when they are away from a parent
  • Holiday and special events issues such as where the children will spend holidays or birthdays
  • How important decisions about the children’s health care and education are to be made
  • Parenting plan drafting and negotiation

Our Process

Our lawyers work with clients at all stages of their family law matters to develop strategies and to create solutions designed to work for the long term. We do this by identifying your current needs and objectives as well as future litigation risks and potentials.

Our approach allows us to present you with, and guide you through a set of realistic and practical legal solutions that protect you and your family and promote the best interests of your children

How can parents get full custody?

A parent can get full custody of the children by successfully demonstrating to the court that it is the children’s best interest. A court will be more likely to award full custody in cases where the evidence shows the parents cannot successfully co-parent together. Child custody lawyers can assist with preparing strategies that will help you move towards full custody.

Legal Options for Decision-making responsibility and parenting time

Child custody lawyers can help you understand your legal options so you can choose the best course of action.

1. Parenting Plans

When parents are cooperative and can agree on parenting issues they can put together a document that’s commonly referred to as a parenting plan. They can create this document on their own, through mediation or with the assistance of lawyers. This is a document that outlines how you and your co-parent will manage the various parenting responsibilities. There is no set format for this agreement and because of this, it allows parents to set out their agreement in whatever way works best for them and their families.

Common topics in a parenting plan:

Parenting schedule

Scheduling changes

Vacation, holidays and special days

Health care

Diet and nutrition

Children’s use of technology

Discipline and structure



Extended family

Involvement of new partners


Religion and cultural upbringing

Extra-curricular activities



2. Claim for decision-making responsibility and parenting time

If there is not a court order already in place that addresses the issue, you will need to file a claim for decision-making responsibility and parenting time. Two forms are involved: Form 8: Application (general) and Form 35.1: Affidavit in support of claim for custody or access. These forms need to be filed with the court, issued and served upon the other parent. The other side will the file their responding materials, which includes a Form 10: Answer and Form 35.1: Affidavit in support of claim for custody or access.

A number of court appearances will follow, culminating with a trial, unless the parties can reach a settlement.

It should be noted that if you initiate a court proceeding for custody and access, the other side may make additional claims, such as support.

3. Motion to change decision-making responsibility and parenting time

If there is already a court order in place that addresses the issue you want readdressed, decision-making responsibility and parenting time, you will be asking the court to make a change to the order. You will need to file a Form 15: Motion to change that formally sets out the change you are asking the court to make, a Form 14A: Affidavit that includes your reasons for asking for the change, and a Form 35.1: Affidavit in support of claim for custody or access where you give additional information and outline your proposed parenting plan. These forms need to be filed with the court, issued and served upon the other parent. The other side then files their responding materials, which includes Form 15B: Response to motion to change  and Form 35.1: Affidavit in support of claim for custody or access.

As with filing an initial claim, when filing a motion to change, keep in mind that the other side may respond with additional claims, beyond custody and access.

4. Alternative Dispute Resolution (ADR)

There are alternatives to going to court, that can be effective where the parties are both motivated to negotiate and reach an amicable settlement.
The main benefits of ADR are:

  • It gives the parties more control over the process
  • It is usually more cost-effective than going to court
  • A resolution can be reached faster than going to court
  • It is less invasive than court and provides more privacy as there are less documents filed with the court that become public record

While ADR is to be encouraged in most cases, it is not appropriate where there has been a history of domestic violence or there is a power imbalance between the parties.

There are three main types of ADR: mediation, arbitration and collaborative law. Each requires the parties enter the process voluntarily.

A. Mediation

In family law mediation, a neutral third party works with the parties to help them negotiate a settlement. Mediation can be used before, during or after litigation. The parties can have their lawyers accompany them to mediation or they can attend without their child custody lawyers. When there is a realistic possibility of reaching a settlement or agreement, mediation can be a cost effective alternative to going to court and will get you and your family a faster resolution.
The settlement may cover all or some of the issues and can be a great tool for working out a comprehensive parenting plan. A growing body of research has shown that parties are more likely to follow through and abide by the terms of a settlement when it is the result of mediation

B. Arbitration

Whereas in mediation the parties are not obliged to come to an agreement or settlement, in arbitration, a binding and final decision is made by the arbitrator. Their final decision is called a “family arbitration award”. You and your ex partner can choose to have all or some of your family law issues arbitrated. The specific issues to be arbitrated should be set out in an “arbitration agreement” and the arbitrator cannot decide issues not included in this agreement.

Arbitration is not as formal as court but it is more structured than mediation. Each side can submit facts, evidence, witnesses, documents and arguments in support of their position.
While you do not have to have a family lawyer represent you during arbitration, Ontario family law does require the parties to both receive independent legal advice.

C. Collaborative Law

Collaborative law is a relatively new branch of family law. While it requires that both parties are represented by family lawyers, it is the opposite of the adversarial process of going to court. Collaborative lawyers receive special training to be able to offer this service. The lawyers work closely with the parties to negotiate a settlement.

At the outset of the process, the lawyers agree in writing not to go to court. This means, if the parties cannot resolve their issues through collaborative law, they will have to retain new lawyers if they then decide to go to court to litigate the issues.

What’s the difference between custody and access?

In family law matters, custody and access are important concepts, but, it’s quite often the case that people don’t actually understand these terms.
Custody: who makes the decisions about the children, such as education, medical and general well-being. Custody is frequently mistakenly assumed to always mean physical custody.
Access: refers to how often each parent spends time with the child.
What’s the difference between sole custody, joint custody and shared custody?

Updated Terminology:

In recent years, there has been a shift towards using terms like “parenting time” or “decision-making responsibility” instead of “custody” and “access.” This change aims to reduce conflict and emphasize co-parenting, rather than implying ownership or control over the child.

Decision-Making Responsibility: This replaces the term “custody” and refers to how decisions about the child’s welfare are made. It can be sole or joint, much like custody.
Parenting Time: This term replaces “access” and refers to the time a child spends with each parent, regardless of who has decision-making responsibility.

Sole Custody:

One parent, the custodial parent, usually makes all the major decisions about the child. However, the other parent will still have a right to be informed about those decisions. When a parent has sole custody, it typically means the child lives with them full time and the other parent has regular access. Sole custody is most commonly awarded where it is shown to be in the children’s best interests, such as when the parents are unable to co-parent effectively.

Joint Custody:

The parents make the major decisions about the child together and each are usually entitled to equal input. Even if the child physically spends more time with one parent than the other, both parents are still jointly responsible for decision-making. Joint custody does not mean the child necessarily spends half their time with each parent. A child could live primarily with one parent and see the other parent every other weekend, which looks like sole custody, but could actually be joint custody – since custody refers to decision making, not physical access.

Shared Custody:

Often referred to as ‘joint physical custody’, in these arrangements, the child spends is with each parent approximately 50% of the time. As with joint custody, the decisions about the child are usually made jointly by both parents.

How do you get 50/50 custody?

You need to demonstrate to the court that 50/50 custody is in the best interests of the children. A child custody lawyer can help identify opportunities for you to make a case for 50/50 custody

At what age in Ontario can a child decide which parent to live with?

As long a child is a minor, they are generally not able to outright decide for themselves which parent to live with. However, the older they get, the more weight a court will give to their views and preferences. If you would like to submit the views and preferences of the children to the court, you can ask the court to make an order that the Office of the Children’s Lawyer get involved. This will result in a court-appointed lawyer appointed to meet with the children and submit a “custody and access assessment” to the court. The court can also ask for a private lawyer or social worker to submit a “voice of the child report” if the child is over 7 years of age. In rare cases, a judge may even ask to speak to the child themselves in their chambers.

While you do not need a child custody lawyer to draft or negotiate a parenting plan, it is highly advisable to have independent legal advice before signing any agreement, including a parenting plan.

How do you win custody mediation?

There is no “winning” in mediation. It is not an adversarial process. Mediation is a process where a neutral third party, a mediator, assists the parties in negotiating a settlement. The mediator cannot impose a settlement or agreement on the parties. You cannot be forced into mediation and you cannot be forced to accept a settlement or agreement in mediation.

What determines who has custody of a child?

The court determines who has custody of a child by applying the Best Interests of the Child test. Previous or present conduct of a parent and the past or present circumstances of a parent are only relevant in this context and to the extent that they can be shown to bear on the parent’s parenting abilities. Talk to a child custody lawyer to learn more about the best interests of the child test.

How does the judge decide who gets custody?

In Ontario family law, the court does not favor the mother or father by default. Either parent, father or mother, “wins” a custody case the same way, on the basis of the best interests of the child. A significant factor that the court considers is the “status quo”, that is, what is the current arrangement/the arrangement the children are used to? The courts recognize it is disruptive and stressful for children to have their lives changed in dramatic ways so they are reluctant to change the status quo unless there is good reason to do so.

Can a mother move a child away from the father in Canada?

Even if a parent has sole custody, a parent cannot move a child away from the other parent in Canada or outside of Canada. This has been upheld by the Ontario Court of Appeal and the Supreme Court of Canada. If you have reason to believe a parent is about to leave the province with your child without consent of you or the court, talk to a child custody lawyer as soon as possible to take preventive steps.

Can a father get full custody in Ontario?

Absolutely. Either parent may ask the court for full custody. The likelihood of success is based on the evidence presented, not the gender of the parent. Child custody lawyers help mothers and fathers make claims for full custody.

Can a father take a child away from the mother? Or vice versa

Removing a parent from a child’s life or even reducing the time the children spend with a parent is difficult to do and courts are only likely to make such an award in extenuating circumstances. The courts follow the principle of “maximum contact”, which holds that it is in the best interests of the children to have as much contact with each parent as possible. Sufficient evidence will be needed to demonstrate to the court that it is not in the best interest of the child to have as much or any contact with a parent. If you believe it truly is in the best interests of your child to have the child removed from the other parent’s custody or to terminate access, talk to a child custody lawyer as soon as possible so you can protect the well-being of your child.


– Custody deals with who makes decisions for the children and access refers to the amount of time a parent has with the children

– Sole custody is usually where one parent makes the major decisions and the other parent is entitled to be informed about the decisions

– Joint custody is where the parents make major decisions together, but it doesn’t necessarily mean the children spend half their time with each parent

– Shared custody is where the parents usually make major decisions together and the children spend close to half their time with each parent

– Parenting plans are agreements that outline how the children will be parented – they can be drafted by parents on their own or by child custody lawyers

– The court typically makes custody and access orders by using the ‘best interests of the child’ test – successful claim will have convinced the court it is in the children’s best interests

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