Ontario courts decide parenting cases only on the child's best interests. Under the Children's Law Reform Act and the Divorce Act, the judge looks at every factor related to the child's circumstances and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Neither parent starts with an advantage.
How the best interests test works in Ontario
Every parenting order in Ontario, whether about decision-making responsibility, parenting time or contact, is made on one test: what is best for this child. Section 24 of the Children's Law Reform Act sets out the test for cases under Ontario law. Section 16 of the federal Divorce Act contains a parallel list for divorcing spouses. For an overview of parenting matters, see our custody and access (parenting) page. The terms themselves are explained in what decision-making responsibility and parenting time mean.
The structure of section 24 is worth understanding, because it shapes how evidence is presented:
- Only the child's best interests count. In making a parenting or contact order, the court "shall only take into account the best interests of the child" (s. 24(1)).
- Primary consideration: safety and well-being. The court considers all factors related to the child's circumstances and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being (s. 24(2)).
- A list of factors. Section 24(3) lists eleven factors, from the child's needs and relationships to family violence and other proceedings. The list is not exhaustive.
- Detailed family violence factors. Where family violence is raised, section 24(4) tells the court what to weigh.
- Limits on past conduct. Past conduct is not considered unless it is relevant to the person's exercise of decision-making responsibility, parenting time or contact (s. 24(5)).
- Maximum time, within best interests. In allocating parenting time, the court gives effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests (s. 24(6)).
- Same test at every stage. The test applies to interim orders and to variations (s. 24(7)).
The factors the court considers
| Section 24(3) | Factor | Evidence that often matters |
|---|---|---|
| (a) | The child's needs, given age and stage of development, such as the need for stability | School, routines, health and developmental needs |
| (b) | The nature and strength of the child's relationship with each parent, siblings, grandparents and other important people | Who the child turns to, time spent together, family ties |
| (c) | Each parent's willingness to support the child's relationship with the other parent | Messages, flexibility with the schedule, how each parent speaks about the other |
| (d) | The history of care of the child | Who handled school, medical appointments, meals, bedtime |
| (e) | The child's views and preferences, given due weight for age and maturity, unless they cannot be ascertained | Reports, interviews; see whether a child gets a say |
| (f) | Cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage | Language spoken, faith practice, community ties |
| (g) | Any plans for the child's care | Each parent's proposed schedule, housing, school, child care |
| (h) | Each person's ability and willingness to care for and meet the child's needs | Work schedules, support network, health |
| (i) | Each person's ability and willingness to communicate and co-operate on matters affecting the child | History of communication, use of a co-parenting app |
| (j) | Any family violence and its impact | Police reports, orders, medical or counselling records |
| (k) | Any civil or criminal proceeding, order, condition or measure relevant to the child's safety and well-being | Bail conditions, restraining orders, child protection involvement |
How family violence is weighed
The Children's Law Reform Act defines family violence broadly: conduct by a family member toward another that is violent or threatening, that is a pattern of coercive and controlling behaviour, or that causes the other person to fear for their safety or that of another person, including, for a child, direct or indirect exposure to such conduct (s. 18(1)). When family violence is raised, the court takes into account its nature, seriousness and frequency and when it occurred; whether there is a pattern of coercive and controlling behaviour; whether the child was the target or was exposed; the harm or risk of harm to the child; any compromise to safety; whether it causes fear; any steps the person has taken to prevent further violence and improve their parenting; and any other relevant factor (s. 24(4)).
Family violence can affect both whether shared decision-making is appropriate and what parenting time is safe. Where safety is in question, a court can also make supervision directions (s. 34) and orders limiting contact or communication (s. 28(1)(c)(i)). Questions about who stays in the family home after violence are dealt with under the Family Law Act; see exclusive possession of the matrimonial home.
How the evidence reaches the judge
A parenting application under the Children's Law Reform Act must come with an affidavit from the person applying, setting out their proposed plan for the child's care and upbringing, any current or previous involvement in family proceedings (including child protection proceedings) or criminal proceedings, and any other information relevant to the best interests factors (s. 21(4)). That affidavit is often the court's first impression of a parent, so it should be factual, specific and focused on the child.
Beyond the parties' own evidence, the court can hear from professionals. A court-appointed assessor can report on the child's needs and each party's ability and willingness to meet them (s. 30). In some cases the Office of the Children's Lawyer becomes involved to represent the child or to report on the child's views; see whether a child gets a say. Teachers, doctors and counsellors may also provide records.
Travel, passports and moves
Best interests also govern the practical limits a court can place on a parent. Among other things, a parenting order can prohibit a party from changing the child's residence, school or day care without consent or a court order, prohibit removing the child from Ontario without consent or an order, and require the child's passport or health card to be delivered to the court or another person (s. 28(1)(c)(iii) to (v)). Those terms are common where one parent fears the child may be taken away. Our page on travelling with your child after separation explains consent letters and passports, and longer-term moves follow the separate relocation rules.
What changes the answer
- The age of the child. A toddler's need for consistent routines and a teenager's views carry different weight. The factors are applied "given the child's age and stage of development".
- Willingness to support the other relationship (s. 24(3)(c)). A parent who undermines the child's relationship with the other parent can harm their own case.
- History of care (s. 24(3)(d)). Who actually did the parenting, before and after separation, is often powerful evidence.
- Co-operation (s. 24(3)(i)). Joint decision-making works only where parents can communicate. High conflict may lead to sole or divided decision-making.
- Relocation. A proposed move adds its own factors and burdens of proof; see moving with a child after separation.
- Grandparents and others. The child's relationship with grandparents and other important people is itself a listed factor; see grandparents and contact.
- Professional assessments. The court may appoint a person with technical or professional skill to assess and report on the child's needs and each party's ability to meet them (s. 30).
A worked example
For example, imagine Toronto parents of a seven-year-old and a twelve-year-old. One parent worked from home and handled most school and medical matters; the other worked long hours but coached the older child's team. Since separation, the children have lived mainly with the first parent. The second parent now asks for an equal schedule.
A court would look at the history of care (largely the first parent), each child's needs and stage of development, the strength of each relationship, the plans each parent proposes, and whether the parents can co-operate. The twelve-year-old's views would be given weight according to maturity; the seven-year-old's views may be harder to ascertain. Applying the principle that each child should have as much time with each parent as is consistent with their best interests, a court might order expanded time for the second parent, which might or might not be equal, and the schedules for the two children could differ. Any change in time could also affect child support; see child support with shared parenting. This example is hypothetical.
Common mistakes in best interests cases
- Focusing on the other parent's flaws instead of the child's needs. Past conduct only matters if it relates to parenting (s. 24(5)).
- Involving the children in the conflict. Asking a child to choose sides or passing messages through them works against the parent who does it.
- Refusing reasonable time with the other parent. Willingness to support the other relationship is a listed factor.
- Arriving without a plan. Courts consider each parent's plan for the child's care (s. 24(3)(g)). Be specific about schedule, school and child care.
- Ignoring the other parent's information rights. Withholding school or medical information can damage credibility.
- Breaching interim orders. Compliance with the current order is part of the picture; see when a parenting order is not followed.
What to do this week
- Write a factual history of who has cared for the children, with examples and dates.
- Draft a realistic parenting plan: schedule, school, child care, holidays and decision-making.
- Gather school reports, medical records and activity schedules.
- Keep communications with the other parent civil, child-focused and in writing.
- Note any safety concerns with dates, and any police or court involvement.
- Book a free consultation with us to organize your evidence around the section 24 factors.
Frequently asked questions
Do mothers get preference in Ontario?
No. A child's parents are equally entitled to decision-making responsibility (s. 20(1)), and the court decides on the child's best interests alone.
At what age can a child choose where to live?
There is no fixed age in the Act. The child's views and preferences are one factor, given due weight for age and maturity (s. 24(3)(e)).
Does a parent's new partner matter?
It can, to the extent the new partner affects the child's needs, stability, safety or care. A "family member" under the Act includes a dating partner of a parent who participates in household activities (s. 18(1)).
Is equal parenting time presumed?
No. The principle is as much time with each parent as is consistent with the child's best interests (s. 24(6)), not a presumption of equal time.
Are the federal and Ontario tests different?
They are closely aligned. Section 16 of the Divorce Act sets out the same primary consideration and a parallel list of factors for divorcing spouses.
Can the court order an assessment?
Yes. Under section 30, the court may appoint a person with technical or professional skill to assess and report on the child's needs and each party's ability to meet them.