Divorce Act s.16 — Best Interests of the Child
- •Section 16 of the Divorce Act lists the statutory factors a Canadian court MUST consider when making any parenting order — the 'best interests of the child' test.
- •The child's well-being is paramount under s.16(1). All other considerations are subordinate.
- •An affidavit that doesn't address the s.16(3) factors specifically — by name, with evidence — leaves the court to fill in the gaps from the other party's submissions.
The paramount factor — s.16(1)
The court shall take into consideration ONLY the best interests of the child of the marriage in making a parenting order or contact order. (Divorce Act s.16(1))
This is the most important sentence in Canadian family law. Best-interests is the only consideration — not fairness to parents, not punishment for past behavior, not religious or cultural preferences of the parents. Anything you put in an affidavit must ultimately tie back to the child's well-being.
The s.16(3) factors
Section 16(3) lists the specific factors the court must consider. They include but are not limited to:
- (a) the child's needs, given their age and stage of development
- (b) the nature and strength of the child's relationships with each parent, siblings, grandparents, and other important people in their lives
- (c) each spouse's willingness to support the child's relationship with the other spouse
- (d) the history of care of the child
- (e) the child's views and preferences (where they can be reasonably ascertained, given age and maturity)
- (f) the child's cultural, linguistic, religious and spiritual upbringing — including Indigenous heritage
- (g) any plans for the child's care
- (h) the ability and willingness of each person to care for and meet the child's needs
- (i) the ability and willingness of each person to communicate and cooperate with the other person on matters affecting the child
- (j) any family violence and its impact on the child and on the violent parent's ability to care for the child
- (k) any civil or criminal proceeding or order relevant to the child's safety, security, and well-being
How to address each factor in your affidavit
| Factor | What to include |
|---|---|
| (a) Child's needs | Specific developmental, educational, medical, and emotional needs at the child's age — anchored with current school year, medical history, age-appropriate activities |
| (b) Relationships | Description of the child's bond with each parent, siblings, extended family — with concrete examples, not just 'we have a great relationship' |
| (c) Support of the other parent's relationship | Evidence you've encouraged the children's relationship with the other parent — communication around exchanges, holiday/birthday accommodations, school attendance |
| (d) History of care | Concrete description of who has historically done what — school drop-offs, doctor visits, bedtime routines, homework help, extracurriculars |
| (e) Child's views | Only if the child has expressed views you're reporting; very limited in young children. Direct quotes ('She told me on April 12 that she...') treated as hearsay; use child-friendly assessments or Office of the Children's Lawyer involvement |
| (f) Culture/heritage | Religious observance, language preservation, Indigenous status / heritage participation, ethnic or cultural activities |
| (g) Plans for care | Your proposed parenting time schedule, your decision-making proposal, your dispute-resolution mechanism — concrete and specific |
| (h) Ability to care | Your work schedule, residence, support systems, history of caregiving — proven by exhibits where possible |
| (i) Cooperation | Examples of your willingness to communicate; if the other parent has been uncooperative, dated examples with exhibits |
| (j) Family violence | If applicable — type, frequency, witnesses, exhibits (police reports, photos, medical records). Federal Act now explicitly requires this consideration |
| (k) Other proceedings | Any criminal, child protection, or civil proceedings involving any party — disclosed even if it hurts your case |
The willingness-to-support factor (s.16(3)(c)) — most underused by fathers
Section 16(3)(c) requires the court to consider each parent's WILLINGNESS to support the child's relationship with the OTHER parent. This is one of the most underused factors by self-rep fathers. Courts heavily weight whether a parent fosters the other parent's relationship with the child.
- Examples of you facilitating the other parent's contact during your time
- Examples of you accommodating special occasions (birthdays, holidays, school events) for the other parent
- Examples of positive communication about the other parent to the children
- Conversely: documented examples of the other parent NOT supporting your relationship (with exhibits — texts, missed exchanges, alienating comments reported by witnesses)
Frequently asked
Are the s.16(3) factors weighted equally?
No. The court applies the factors with the paramount consideration of the child's well-being. Some factors will be more relevant than others depending on the case. Family violence (s.16(3)(j)) is given particular weight under the 2021 amendments. The history-of-care factor is heavily weighted when the parenting arrangement is being established from scratch.
What about provincial best-interests tests?
Most provinces have their own best-interests tests in provincial family-law statutes (BC's Family Law Act s.37, AB's Family Law Act s.18, etc.). They overlap heavily with the Divorce Act s.16(3) but include some additional factors. For matters under the Divorce Act use s.16(3). For matters under provincial law use the applicable provincial statute. If both apply (mixed federal/provincial), address both.
How does a judge actually weigh these factors?
Judges apply the factors holistically — they don't tally points. A pattern of factors pointing one way is more persuasive than any single factor. The affidavit's job is to make the pattern legible through dated, witnessed, exhibit-supported observations.