In granting custody, the over-arching principle that applies is “the best interests of the child.” This principle applies to all provinces and territories. Such legislation can also be found in Ontario’s Children’s Law Reform Act. The courts are concerned with what the best interests of the child are, regardless of the outcome that either parent wants. The Ontario Children’s Law Reform Act and the Divorce Act state that the past conduct of the party requesting custody is not taken into consideration unless it is relevant to the ability of the party to act as a parent for the child.
Under section 17(1) of The Divorce Act:
“shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”
Under section 19(a) of The Ontario Children’s Law Reform Act:
The purpose of the Act is:
“to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children.”