Divorce Act (Canada) section 16 — Best interests of the child¶

TL;DR. Canada's federal Divorce Act section 16 (as substantially rewritten by Bill C-78, in force 1 March 2021) is the federal statutory anchor for best-interests-of-the-child analysis in divorce-based parenting and contact decisions across Canada. Subsection (1) mandates that "the court shall take into consideration ONLY the best interests of the child" — exclusive welfare framework. Subsection (2) establishes the primary-consideration safety-security-and-well-being principle. Subsection (3) sets out the 11-paragraph factor list (a)-(k), including the friendly-parent factor at (3)© ("each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse"), the family-violence factor at (3)(j), and the relevant-criminal-civil-proceedings factor at (3)(k). Subsection (4) sets out the 8-paragraph family-violence assessment framework. Subsection (5) is the past-conduct relevance limitation. Subsection (6) sets out the maximum-contact-with-each-spouse principle, replacing the prior "maximum contact" language with welfare-bounded framing.

Source: Justice Canada canonical URL — Crown copyright, published under Reproduction of Federal Law Order. · Fetched: 2026-06-13 · Editorial commentary licence: CC BY 4.0

Full statutory text (verbatim)¶

Section 16 — Best interests of child¶

16(1) 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.

Primary consideration¶

(2) 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.

Factors to be considered¶

(3) 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;

(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.

Factors relating to family violence¶

(4) 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;

(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.

Past conduct¶

(5) 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.

Parenting time consistent with best interests of child¶

(6) 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.

Parenting order and contact order¶

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

History: R.S., 1985, c. 3 (2^nd Supp.), s. 16; 2019, c. 16, s. 12 (Bill C-78 — in force 1 March 2021).

Why section 16 matters for parental-alienation analysis¶

The post-Bill C-78 section 16 (in force 1 March 2021) substantially restructured Canadian federal family law. PA-pattern evidence intersects multiple subsections:

Subsection (3)© — the friendly-parent factor: "each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse" — the canonical Canadian federal statutory hook for parental-alienation-relevant evidence. Conduct that obstructs, denigrates, or undermines the other parent's relationship with the child is directly addressable under this factor.
Subsection (3)(e) — child's views and preferences: "giving due weight to the child's age and maturity, unless they cannot be ascertained" — the analytical framework for assessing whether a child's expressed wishes reflect autonomous views or PA-pattern coaching effects. The "due weight … to the child's age and maturity" qualification gives courts substantial discretion to discount stated wishes that appear shaped by alienating influence.
Subsection (3)(i) — co-parenting capacity: "the ability and willingness of each person … to communicate and cooperate, in particular with one another, on matters affecting the child" — sustained alienating conduct evidences incapacity for the co-operative co-parenting the statute envisages.
Subsection (3)(j) family-violence factor + subsection (4) assessment framework: post-Bill C-78, family violence is given dedicated statutory treatment with an 8-paragraph assessment framework. The framework is bidirectional — it covers both physical violence and patterns of coercive and controlling behaviour (4)(b) — capturing alienating-pattern conduct where it rises to coercive control while preserving the analytical distinction from genuine safeguarding concerns.
Subsection (2) — primary safety-security-well-being consideration: this is the operating analytical hierarchy. Documented safety/security concerns retain primacy; PA-pattern friendly-parent considerations operate within the safety-bounded framework.
Subsection (6) — maximum-contact-bounded-by-welfare: Bill C-78 deliberately replaced the prior "maximum contact" principle with the welfare-bounded "as much time with each spouse as is consistent with the best interests of the child" formulation. Canadian PA jurisprudence post-2021 has navigated this carefully — the principle still supports robust parenting-time orders against PA-pattern obstruction, but no longer entrenches a doctrinal maximum-contact presumption that could override welfare.

The leading Canadian appellate authorities on PA-pattern conduct under the post-Bill C-78 framework include cases under the Ontario Children's Law Reform Act (substantively parallel to Divorce Act s.16) and the Supreme Court of Canada's broader best-interests jurisprudence.

Cross-references within the AntiAlienate Knowledge Base¶

Jurisdiction page: Canada (federal framework) + provincial pages (Ontario, BC, Quebec, etc.)
Provincial parallel: Ontario Children's Law Reform Act ss. 24-28 (substantially parallel post-2021 reform); each province has its own family-law statute applicable to non-divorce custody/contact matters
Federal cross-border statute: Children's Law Reform Act (Ontario) implements Hague Convention 1980 + UCCJEA-equivalent
Companion treaty: Hague Convention 1980 articles — applicable to Canada (acceded 2 October 1983, in force 1 December 1983)
Comparable state statute: California Family Code §§ 3011, 3020, 3040 · Florida § 61.13(3) · K.S.A. 23-3203 (Kansas)
UK parallel: Children Act 1989 s.1 (welfare paramountcy + welfare checklist)

Primary source¶

Justice Canada canonical URL: https://laws-lois.justice.gc.ca/eng/acts/d-3.4/section-16.html
Statute citation: Divorce Act, R.S.C., 1985, c. 3 (2^nd Supp.), s. 16, as amended by S.C. 2019, c. 16, s. 12 (Bill C-78)
In-force date for current text: 1 March 2021 (Bill C-78 substantive amendments)
Crown copyright + reproduction: Federal statutes may be reproduced freely under the Reproduction of Federal Law Order (no further permission required for non-commercial or commercial reproduction).

Sources & authoritative references¶

Referenced in this page:

Topic baseline (independently verifiable):