Custody or access disputes involving unmarried parents, third parties, or married parents who have separated without instituting divorce proceedings are regulated by provincial and territorial statutes. Provincial and territorial legislation also regulates wardship proceedings where child protection agencies seek to intervene in dysfunctional family situations that threaten the physical, emotional, or economic well-being of any child.
The "welfare" or "best interests" of the child has long been considered the paramount consideration in custody and access disputes between parents or between parents and third parties. Almost ninety years ago, a judge of the Alberta Court of Appeal defined the criteria to be applied in contested custody proceedings in the following words:
The paramount consideration is the welfare of the children; subsidiary to this and as a means of arriving at the best answer to that question are the conduct of the respective parents, the wishes of the mother as well as of the father, the ages and sexes of the children, the proposals of each parent for the maintenance and education of the children; their station and aptitudes and prospects in life; the pecuniary circumstance of the father and the mother - not for the purpose of giving the custody to the parent in the better financial position to maintain and educate the children, but for the purpose of fixing the amount to be paid by one or both parents for the maintenance of the children. The religion in which the children are to be brought up is always a matter for consideration, even, I think, in a case like the present where both parties are of the same religion, for the probabilities as to the one or the other of the parents fulfilling their obligations in this respect ought to be taken into account. Then an order for the custody of some or all of the children having been given to one parent, the question of access by the other must be dealt with.54Provincial and territorial statutes across Canada have endorsed "the welfare of the child" or more commonly "the best interests of the child" as the determinative criterion in custody and access disputes.55In Alberta, the terms
custody and access orders have been displaced by new terminology, namely, "parenting" and "contact" orders.56And in British Columbia, the Family Law Act does not use the terms "custody" or "access" but rather refers to "guardianship," "parenting arrangements," "parental responsibilities," and "parenting time."57 Several provinces and territories, including Alberta, British Columbia, New Brunswick, Manitoba, Newfoundland and Labrador, Ontario, Saskatchewan, and the Yukon Territory, have statutorily designated particular factors that the courts must take into account in determining the best interests of a child.58Most of the provincial and territorial statutes, like the Divorce Act, expressly stipulate that the conduct of the parties is only relevant insofar as it affects parenting ability.59To exemplify the type of statutory provisions found in most provinces and territories, it is appropriate to set out section 24 of the Ontario Children’s Law Reform Act,60which provides as follows:
Merits of application for custody or access
24. (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) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) 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;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) 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,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(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,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.61Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
Additional considerations include the physical, psychological, and emotional well-being and security of the child; fulfillment of religious, ethical, and moral upbringing of the child in accordance with community norms; and the long-term welfare of the child, including provision for healthy growth and development of a child that will enable the child to face problems of life as an adult.62Section 21(1) of the Ontario Children’s Law Reform Act further provides that a parent of a child or any other person may apply to a court for an order
respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. Pursuant to section 21(2), an application under subsection (1) for custody of or access to a child shall be accompanied by an affidavit, in the form prescribed for the purpose by the rules of court, of the person applying for custody or access, containing,
(a) the person’s proposed plan for the child’s care and upbringing;
(b) information respecting the person’s current or previous involvement in any family proceedings, including proceedings under Part III of the Child and Family Services Act (child protection), or in any criminal proceedings; and
(c) any other information known to the person that is relevant to the factors to be considered by the court under subsections 24 (2), (3) and
(4) in determining the best interests of the child.63Section 21.1 requires every non-parent who applies under section 21 for custody of a child to file with the court the results of a recent police records check respecting the person in accordance with the rules of court. The results obtained, and any information, statement, or document derived from the information contained in the results, are admissible in evidence, if the court considers it to be relevant. Evidence that is determined by the court to be admissible under section 21.1 will be considered in determining the best interests of the child under section 24.
Section 21.2 requires every non-parent who applies for custody of a child to submit a request to every society or other body or person prescribed by the regulations, for a report as to,
(a) whether a society has records relating to the person applying for custody; and
(b) if there are records and the records indicate that one or more files relating to the person have been opened, the date on which each file was opened and, if the file was closed, the date on which the file was closed.
A copy of each request must be filed with the court. The society or other body or person shall provide the court in which the application was filed with a report, a copy of which is provided to every party and to counsel, if any, representing the child, unless the court determines that all or part of the report should be sealed in the court file and not disclosed because some or all of the information contained in the report is not relevant to the application or the application is withdrawn. A report that is filed under section 21.2, and any information, statement, or document derived from the information
contained in the report, is admissible in evidence in the application, if the court considers it to be relevant. Evidence that is determined by the court to be admissible shall be considered in determining the best interests of the child under section 24.64Pursuant to section 21.3, where an application for custody of a child is made by a person who is not a parent of the child, the clerk of the court shall provide to the court and to the parties and counsel, if any, representing the child, information in writing respecting any current or previous family proceedings involving the child, and any current or previous criminal or family proceedings concerning any person who is a party to the application and who is not a parent of the child. Written information that is provided to the court under section 21.3, and any information, statement, or document derived from that information, is admissible in evidence in the application, if the...