Best Interests of the Child
When parents separate and can’t agree on parenting arrangements, either parent can ask the court to make the decision for them. The court must make custody decisions based on what arrangements are in the best interests of the child. This involves an evaluation of what will promote the child’s physical, emotional, intellectual and moral well-being.
The court encourages parents to resolve the dispute through mediation. In fact, recent changes to family court in Manitoba require parents to attempt out of court resolution of their matter before moving through the court system. The court has the power to refer parents to a mediator with Manitoba Justice. If mediation is inappropriate or the mediation process is unsuccessful, the court will make a decision based on the best interests of the child.
Before the court will make a decision about parenting arrangements (custody/access), the parents must complete a parent education program called For the Sake of the Children. Please visit the Parenting Arrangements section of this website for more information.
The court will take into account a number of factors in deciding what parenting arrangement is in the child’s best interests. The Family Maintenance Act includes an open-ended list of best interests criteria that courts will consider including the following:
- the nature, quality and stability of the relationship between:
- the child and each parent seeking custody or access
- the child and other significant individuals in the child’s life
- the child’s physical, psychological, educational, social, moral and emotional needs, including the need for stability, taking into consideration the child’s age and stage of development
- the impact on the child of any domestic violence, including consideration of:
- the safety of the child and other family and household members who care for the child
- the child’s general well-being
- whether the parent who perpetrated the domestic violence is able to care for and meet the needs of the child
- the appropriateness of making an order that would require the parents to cooperate on issues affecting the child
- the ability and willingness of each parent to communicate and cooperate on issues affecting the child
- the willingness of each parent seeking custody to facilitate the relationship between the child and the other parent
- any special needs of the child, including special needs for care, treatment or education
- the proposed plan of care for the child, including the capacity of the parent seeking custody or access to provide a safe home, adequate food, clothing and medical care for the child
- the history of the care arrangements for the child
- the effect on the child of any disruption of the child’s sense of continuity
- the views and preferences of the child, where the court considers it appropriate to ascertain them
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage
Family arbitrators, under The Arbitration Act, must make any family arbitration award concerning parenting arrangements (custody/access) based on the best interests of the child.
Once The Family Dispute Resolution (Pilot Project) Act comes into effect, the best interests of the child must be the most important consideration of anyone taking action relating to a family dispute involving a child.
In addition, coming changes to the Divorce Act that are not yet in force also set out open ended best interests criteria. Many of these factors are similar to those set out in Manitoba’s The Family Maintenance Act, above.