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CUSTODY AND ACCESS – THE ULTIMATE QUESTION



The ultimate question in custody and access disputes is “What is in the child’s best interest?”. This was confirmed in the 1993 Supreme Court case of Young v Young.


Leading legislation in family law, the Children’s Law Reform Act and the Divorce Act, both state that the court must consider what is in the child’s best interest before making an Order for custody or access. The 1993 Supreme Court case of Young v Young confirmed that the ultimate question in custody and access disputes is, “What is in the child’s best interests?”.

Unfortunately, there isn’t a set definition of “best interests”. In determining what is in a child’s best interests, the legislation sets out various factors that the court must consider, thus making the definition of “best interest” as fluid as each individual case.


As per section 16(8) of the Divorce Act, the court is required to consider only the best interests of the child of the marriage, with reference to the condition, means, needs and other circumstances of the child.


Similarly, under the Children’s Law Reform Act, section 24(2) sets out the criteria that the court must consider in determining what exactly is in a child’s best interests. Section 24(2) states:


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, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.


Because of the “best interests” test that has been established above, individuals are often tempted to hold their ex partner’s past conduct against them in an attempt to gain the upper hand in custody disputes. Luckily, both the Children’s Law Reform Act and the Divorce Act have clauses to prevent this, stating that a person’s past conduct is not relevant to the determination of custody or access unless the conduct is relevant to the ability of that person to act as a parent.


There is extensive case law and legislation governing and guiding the court when considering each factor in determining what is in a child’s best interests. Here at Shankar Law, we make it our mission to support our clients in demonstrating what is in their child’s best interests, given the unique circumstances of each case. If you’re going through a custody and/or access dispute and want to show the court what is in your child’s best interests, give us a call at Shankar Law Office. WE ARE HERE TO HELP!


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