Divorce Act s. 16 — Best interests of the child (verbatim, post Bill C-78, effective 2021-03-01)¶

Jurisdiction: Canada · Citation: Divorce Act, RSC 1985, c. 3 (2^nd Supp.), s. 16 (as amended by Bill C-78, SC 2019, c. 16, effective 2021-03-01) · Authoritative source: laws-lois.justice.gc.ca — Divorce Act s. 16

The best-interests-of-the-child framework of Canadian federal divorce law. The 2021 Bill C-78 reform (the most comprehensive Divorce Act reform since the 1985 enactment) replaced the prior custody and access terminology with parenting time and decision-making responsibility, codified an enumerated welfare-checklist at s. 16(3), introduced the primary consideration of safety, security, and well-being, and codified the willingness-to-support-relationship factor at s. 16(3)(i).

The provisions parallel: - Australia Family Law Act s. 60CC (post FLAA 2023) - New Zealand Care of Children Act ss. 4+5+6 - UK Children Act 1989 s. 1 (welfare paramountcy + checklist) - Ireland Guardianship of Infants Act 1964 s. 3 + Part V

Canada is doctrinally distinctive among Commonwealth jurisdictions because s. 16(3) provides an enumerated 11-factor welfare-checklist with express PA-relevant factors at ©, (i), and (j), and the Bill C-78 reform codified the family violence definition at s. 2 which expressly includes coercive and controlling behaviour. The combined framework provides one of the most operationally PA-aware welfare-checklists globally.

Verbatim text (current consolidated, post Bill C-78)¶

s. 16 Divorce Act — Best interests of child¶

(1) Primary consideration. The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) Primary consideration. When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

(3) Factors to be considered. In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including:

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

© each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) Factors relating to family violence. In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

© whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) Past conduct. In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) Parenting time consistent with best interests of child. In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Why this matters for PA¶

The primary safety consideration (s. 16(2)). The court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being. This is doctrinally distinctive — the safety+security+well-being formulation is primary among the s. 16(3) factors, not parallel. The psychological prong is operationally important — sustained alienating conduct produces psychological harm engaging s. 16(2).
Factor (b) — child's relationship strength with each parent and significant others. The nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life. In PA-pattern cases where alienating conduct has disrupted relationships, the court evaluates the current relationship strength but in the context of historical relationships — Cassation-equivalent jurisprudence has confirmed that current relationship weakness produced by alienating conduct cannot be used as bootstrap argument for the alienating parent.
Factor © — willingness-to-support-relationship. Each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse. This is the doctrinally explicit Canadian friendly-parent factor. Bill C-78 expressly codified this factor — sustained alienating conduct demonstrates a structural deficit in the alienating parent's willingness to support the targeted parent relationship. The structural Canadian parallel to:
Australian FLA s. 60CC(2)(d) capacity to provide for psychological needs
NZ COCA s. 5© ongoing consultation and co-operation
Portuguese CC art. 1906(5) disponibilidade para promover relações
Factor (e) — child's views with age-and-maturity weighting. The child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained. The unless they cannot be ascertained clause is doctrinally important — provides express foundation for declining to give weight to views where ascertainability is compromised (which can include cases where the views are clearly alienation-induced and the autonomous view cannot be ascertained).
Factor (h) — ability + willingness to care. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child. The ability-and-willingness pairing is doctrinally important — sustained alienating conduct that demonstrates incapacity to meet the child's psychological needs (which include the need for the targeted-parent relationship) engages factor (h).
Factor (i) — communicate-and-cooperate ability + willingness. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child. This is the operational cooperation factor — separate from factor © which is the friendly-parent factor. Together ©+(i) provide structural foundation for PA-pattern analysis: © addresses the alienating parent's attitude toward the targeted-parent relationship; (i) addresses operational cooperation capacity.
Factor (j) — family violence and its impact. Factor (j) operates bidirectionally in PA-pattern cases — combined with the s. 16(4) detailed factor framework (which expressly includes coercive and controlling behaviour at (4)(b)), Canadian law provides one of the most operationally PA-aware family-violence frameworks globally:
(4)(b) coercive-and-controlling pattern. Sustained alienating conduct that constitutes coercive control engages s. 16(4)(b) directly
(4)© child exposure. Even where the child is not directly subjected to violence, indirect exposure engages factor (4)© — alienating conduct against the targeted parent that the child witnesses engages this prong
(4)(d) psychological harm. The physical, emotional and psychological harm or risk of harm to the child — alienating conduct produces psychological harm engaging factor (4)(d)
(4)(g) steps to prevent and improve care. Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care. This is the redress factor — the alienating parent's refusal to engage with court-ordered remediation engages factor (4)(g) negatively
The past-conduct exclusion (s. 16(5)). The court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact. The exclusion is qualified — past conduct relevant to parenting capacity is considered. In PA-pattern cases sustained alienating conduct is structurally relevant to parenting time and decision-making responsibility, engaging the s. 16(5) exception.
The maximum-contact principle (s. 16(6)). The court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. This is the Canadian maximum contact principle, preserved from pre-Bill C-78 jurisprudence (Young v Young; Van de Perre v Edwards). The as much … as is consistent with qualifier makes the principle subordinate to best-interests but doctrinally important — it codifies a structural preference for maximizing contact with both parents.
The decision-making framework shift. Bill C-78 replaced the custody terminology with decision-making responsibility — a doctrinal shift that emphasizes the functional allocation of decisions rather than the status of custody. In PA-pattern cases this is operationally important because decision-making responsibility can be allocated by category (e.g. healthcare to one parent, education to both, religion to the other) — providing structural flexibility for tailored PA-protective orders.

Procedural application¶

Federal jurisdiction over divorce-based parenting orders under Divorce Act; provincial jurisdiction over non-divorce parenting orders under provincial family-law statutes (e.g. Ontario Children's Law Reform Act, BC Family Law Act, Alberta Family Law Act)
The court of original jurisdiction is the Superior Court (Ontario), British Columbia Supreme Court, Court of King's Bench (Alberta), etc.
Office of the Children's Lawyer (Ontario) or equivalent provincial child-advocate offices represent the child's interests
Section 30 assessments (Ontario CLRA) / Bill 27 assessments (BC FLA) / Practice Direction expert assessments provide multidisciplinary welfare assessment
Family Mediation under provincial frameworks is structurally available pre-litigation
The child is heard under s. 16(3)(e) — capacity-based, no fixed age threshold
Appellate review to provincial Courts of Appeal + Supreme Court of Canada via leave

Use in alienating-conduct cases¶

The Supreme Court of Canada has applied the post-Bill C-78 s. 16 framework in PA-pattern cases — see jurisprudence developing from Barendregt v. Grebliunas, 2022 SCC 22 and following authorities
The Ontario Court of Appeal AM v CH, 2019 ONCA 764 applied the willingness-to-support factor against the alienating parent (decided under pre-Bill C-78 framework but reasoning carries forward)
Where alienating conduct is established, Canadian courts can:
First-tier: order family mediation under provincial frameworks
Second-tier: fix specific parenting time and decision-making responsibility orders under s. 16(1) + s. 16.1
Third-tier: shift primary residence — including reversal to targeted parent
Apex-tier: restrict decision-making responsibility to targeted parent or third-party; in extreme cases Office of the Children's Lawyer monitoring
Factor © willingness-to-support-relationship + factor (i) communicate-and-cooperate provide express anchors for treating sustained alienating conduct as engaging the welfare-checklist
Factor (j) family violence (with the s. 16(4)(b) coercive-and-controlling expansion) provides bidirectional pathway — sustained alienating conduct as coercive control against the targeted parent engages factor (j) to the same degree as direct DV
The Office of the Children's Lawyer + Section 30 assessment framework provides operational multidisciplinary engagement with PA-pattern findings