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 parenting decisions based on what arrangements are in the best interests of the child. The court must consider all of the factors related to the child’s circumstances, but must give primary considerations to the child’s physical, emotional and psychological safety, security and well-being.
Parents are encouraged to resolve dispute(s) in a way that strive to minimize conflict, promote cooperation, and meet the best interests of the child, which may include through mediation. 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 the Family Resolution Service, a government branch in the department of Justice that works closely with the court and supports out of court resolution including mediation. 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, the parents must complete an online parent education program called For the Sake of the Children.
The court will take into account a number of factors in deciding what parenting arrangement is in the child’s best interests. The Family Law Act includes an open-ended list of best interests criteria that courts will consider including the following:
- the child's needs, given the child's age and stage of development, such as the child's need for stability;
- the nature and strength of the child's relationship with each person who has or is seeking parental responsibilities or contact with the child or who is a guardian or seeks guardianship of the child, as well as with siblings, grandparents and any other person who plays an important role in the child's life;
- the willingness of each person seeking parental responsibilities, guardianship or contact with the child to support the development and maintenance of the child's relationship with other persons to whom the order would apply;
- the history of care of the child;
- the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be determined;
- the child's cultural, linguistic, religious and spiritual upbringing and heritage, such as Indigenous upbringing and heritage;
- any plan for the child's care;
- the ability and willingness of each person in respect of whom the order is to apply to care for and meet the needs of the child;
- the ability and willingness of each person in respect of whom the order is to apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- any family violence and its impact on, among other things,
- the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on matters affecting the child;
- any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
In considering the impact of any family violence, the court must take the following into account:
- the nature, seriousness and frequency of the family violence and when it occurred;
- 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;
- the physical, emotional and psychological harm or risk of harm to the child;
- any compromise to the safety of the child or other family member;
- whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
- 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;
- any other relevant factor.
Family arbitrators, under The Arbitration Act, must make any family arbitration award concerning parenting arrangements based on the best interests of the child.
Changes to the Divorce Act that came into force in March 2021 also set out the same open ended best interests criteria.