The Best Interests of the Child

The “best interests of the child” is a legal rule that explains how adults should make family law decisions about children.

When the court makes important decisions about a child, like a parenting order or a contact order, the first and only priority must be the best interests of the child. Parents must also put the child’s best interest first when they make parenting agreements and other decisions about the child. This is to ensure that parents, guardians, and courts make decisions that focus first on the child’s safety, happiness, and healthy development.

The law lists factors to help identify the child’s best interests. The New Brunswick Family Law Act has a list of factors to help identify the child’s best interests in section 50 and the Canadian Divorce Act lists these factors in section 16.

The list of factors in the New Brunswick Family Law Act and in the Canadian Divorce Act are very similar. The factors may be weighed differently for different children in different circumstances. None of these factors are always more important than the others. It is always about the best interests of the particular child given their situation and background.

Courts, parents, and other adults who are making decisions about a child must look at all of the following factors to help understand the child’s best interests:

  • Culture and background:
    • Respect the child’s culture, language, and religious beliefs. For example, if the child is from a First Nation, it may be important to preserve their cultural heritage.
  • The child’s needs:
    • Prioritize the child’s needs, especially stability based on their age, development, and maturity.
  • Family relationships:
    • Nurture healthy relationships between the child and their parents, siblings, grandparents, and other important people in their life.
  • The child’s relationship with both parents:
    • Consider each parent’s willingness to encourage a positive relationship between the child and the other parent, even after separation.
  • The child’s past care
    • Consider who looked after the child in the past, and who is taking care of the child now. How have past arrangements impacted the child?
  • The child’s future care
    • Evaluate the proposed plans for the child’s care and upbringing. Who is suggesting these plans? How appropriate and realistic do these plans seem? Do the plans prioritize the child’s needs?
  • The child’s opinion:
    • The court may consider evidence about the child’s preferences, if it is appropriate. It will also consider the child’s age and maturity, and other factors that might affect the child’s views. It is important to note that courts do not ask children to testify directly at a hearing. The court receives this evidence though the testimony of witnesses, and sometimes through an evaluation report by an expert.
  • Capacity of adult caregivers
    • Consider the circumstances of the caregivers who want parenting time, decision-making responsibility, or contact with the child. It is important to think about their ability and willingness to meet the child’s needs and to care for them appropriately.
  • Cooperation
    • Consider whether parents or caregivers are willing to cooperate and communicate with one another, and how this might impact the appropriate parenting arrangement. For example, a court order that shares parenting time with both parents may need more communication and cooperation than one where the child lives primarily with one caregiver.
  • Family violence
    • If there was family violence, consider how it affected the child’s sense of safety and well-being.
    • Consider any caregivers who engaged in family violence. Given this history, examine how are they able and willing to meet the child’s needs.
    • Consider whether it would be appropriate to order caregivers to cooperate and communicate about the child after their history of family violence.
  • Other legal proceedings
    • Consider any other legal proceedings or court orders that are relevant to the child’s wellbeing.

Sometimes, parents don’t agree about what is in the child’s best interests. When both parents share decision-making responsibility, neither parent has final say.

If you and your child’s other parent don’t agree on whether something is in your child’s best interests, you can try to come to an agreement by discussing it together. You can also try getting help from a professional, like a family law mediator, to find ways to agree.

If this does not work for you, you can also speak with a lawyer to get advice. Lawyers can give advice on what the law might say in your situation. They can also help mediate, communicate, and draft parenting agreements.  You can find more information about this in our section titled Getting Legal Help.

If you can’t reach an agreement, you or the other parent can apply to the court for an order. You can do this with or without the help of lawyers. If you decide to apply to the court without a lawyer, PLEIS NB has a guide to help you understand the process.