Each of our clients comes to us with a unique set of circumstances and concerns. For parents who are considering separating or divorcing, the number one concern is almost always child custody. Especially in volatile relationships, our clients want to know what considerations go into a court’s custody decision. What if one parent is more financially stable than the other? What if one parent has a substance abuse or anger problem?

In matters of custody, courts are governed by the federal Divorce Act, which applies in all provinces. Section 16 outlines the factors to be considered in making custody orders. Here are some of the key sections that you should know about:

Section 16(8): Factors

Overall, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child.

Section 16(9): Past Conduct

The court shall NOT take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

For example, a parent may choose to patronize the local bar every night, but as long as the children are cared-for by a babysitter and their lives are not disrupted, the parent’s past behaviour will not negatively affect his/her custody rights. 

s.16(10): Maximum Contact

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This principle may also be applied to third party interveners, such as grandparents, who are no longer able to see the children because the custodial parent is unwilling to permit visitation.

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