Children’s Law Reform Act

Children's Law Reform Act

Best interests of the child test:

  1. The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections 2, 3 & 4.
  2. The court shall consider all the child’s needs and circumstances, including:
    • the love, affection and emotional ties between the child and,
    • each person entitled to or claiming custody of or access to the child,
    • other members of the child’s family who reside with the child; and
    • persons involved in the child’s care and upbringing;
    • the child’s views and preferences if they can be reasonable ascertained;
    • the length of time the child has lived in a stable home environment;
    • the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the
    • necessaries of life and any special needs of the child;
    • any plans proposed for the child’s care and upbringing;
    • the permanence and stability of the family unit with which it is proposed that the child will live;
    • the ability of each person applying for custody of or access to the child to act as a parent;
    • the relationship by blood or through an adoption order between the child and each person who is a party to the application.
  3. A person’s past conduct shall be considered only:
    • in accordance with subsection (40; or
    • if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
  4. In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against:
    • his or her spouse
    • a parent of the child to whom the application relates
    • a member of the person’s household, or
    • any child
  5. For the purposes of subsection (4), anything done in self-defense or to protect another person shall not be considered violence or abuse.