What Does "Best Interests of the Child" Really Mean?

One of the most common phrases people hear during a separation or parenting dispute is "the best interests of the child."

It appears throughout the legislation, is discussed in virtually every parenting decision, and is often relied upon by parents when advocating for a particular outcome.

But what does it actually mean?

The answer is both simpler and more complicated than most people expect.

It's Not About What Either Parent Wants

One of the first things I tell clients is that the law does not ask what Mom wants. It does not ask what Dad wants. It does not ask what arrangement is most convenient for either parent.

Instead, the question is: what arrangement is in the child's best interests?

The focus must remain on the child.

Sometimes that outcome aligns with what one parent wants. Sometimes it does not. The fact that an arrangement is inconvenient, expensive, frustrating, or disappointing for a parent does not necessarily mean it is not in the child's best interests.

Think of "Best Interests" as an Umbrella

I often describe the best interests test as an umbrella.

The phrase "best interests of the child" sits at the top of the umbrella, but underneath it are a number of factors that courts must consider.

Both the Divorce Act and Saskatchewan's Children's Law Act require decision-makers to look at the child's circumstances as a whole rather than focusing on any one factor in isolation.

No single factor automatically determines the outcome. Instead, the court weighs all relevant circumstances to determine what arrangement will best promote the child's wellbeing.

What Factors Do Courts Consider?

While the wording differs slightly between the Divorce Act and The Children's Law Act, 2020, many of the key considerations are similar.

The Child's Needs

The court will consider the child's physical, emotional and psychological needs.

This includes things such as stability, routine, schooling, healthcare, emotional support and the child's overall development.

A parenting arrangement that meets these needs is generally preferred over one that creates instability or uncertainty.

The Child's Relationships

Courts recognize the importance of a child's relationships with parents, siblings, grandparents and other significant people in the child's life.

Maintaining meaningful relationships is often an important consideration when parenting arrangements are being determined.

The Child's Views and Preferences

Depending on the child's age and maturity, their views and preferences may be considered.

This does not mean children get to decide where they live or create their own parenting schedule. Rather, their wishes may form part of the overall analysis.

Generally speaking, the older and more mature the child, the more weight their views may receive.

Each Parent's Ability to Meet the Child's Needs

The court will consider each parent's willingness and ability to care for the child and meet their needs.

This includes practical considerations such as providing appropriate supervision, supporting education, addressing medical needs, encouraging healthy development and placing the child's interests ahead of personal conflict.

The Child's History of Care

Past parenting roles often matter, especially in the interim.

Courts frequently look at who has historically attended appointments, communicated with teachers, managed extracurricular activities, provided day-to-day care and met the child's needs.

This is not because one parent receives "credit" for doing more in the past, but because the court wants to understand what arrangement is most likely to provide continuity and stability for the child going forward.

Family Violence

Both the federal and Saskatchewan legislation require courts to consider the impact of family violence.

Importantly, the focus is not on punishing a parent. The focus is on understanding how the violence affects the child's safety, security and wellbeing, as well as each parent's ability to care for and cooperate regarding the child.

The Ability to Support the Child's Relationship with the Other Parent

One factor that surprises many parents is that courts often consider whether a parent supports the child's relationship with the other parent.

In most cases, children benefit from having meaningful relationships with both parents. A parent who consistently undermines, interferes with or refuses to support that relationship may face significant challenges in court.

There Is No Perfect Formula

Many people come into a consultation hoping there is a simple rule.

There isn't.

Every family is different. Every child is different. Every parenting dispute involves unique circumstances.

The best interests analysis requires a careful examination of all relevant factors and how they interact with one another.

That is why parenting decisions are often fact-specific and why two seemingly similar cases can produce different outcomes.

The Real Question

When parents are involved in a dispute, it is natural to focus on what feels fair to them.

However, the legal system asks a different question.

Not:

"What do Mom and Dad want?"

But rather:

"What arrangement is most likely to promote this particular child's wellbeing, development, safety and happiness?"

That is the heart of the best interests of the child test, and it remains the guiding principle in every parenting decision made by Saskatchewan courts.