Children: Bargaining Tools

March 25, 2019



Sometimes anger and animosity towards an ex-partner clouds the judgement of parents when negotiating terms of a divorce or co-parenting arrangement. Remember, the number one thing you should never do in a family law proceeding is use your child(ren) as a bargaining chip.  When determining issues of custody and access, do not get caught up in arguing over how the ex-partner treated you or why they do not deserve to have custody of the child(ren).  The central and most determinative factor is – what is in the best interests of the child?


So how do courts go about answering what is in the best interests of the child?


The starting assumption in Canadian Law is that children benefit from having both parents involved in their lives – in terms of both visitation and decision making. Courts take a holistic approach, looking at the bigger picture and weighing up several factors, including:


  • The current quality of the Child(ren)’s relationship with each parent and the ability to continue that relationship once the parents are separated;

  • Disruption to the child(ren)’s life – the aim is to disrupt the child(ren)’s life as little as possible in terms of living arrangements, schools and daily schedules.Separating the child(ren) from siblings, family members, their friends or other caregivers is also an unwelcome disruption;

  • Ability of parents to care for needs – including child(ren)’s physical well-being, emotional well-being and any medical or special needs that they may have;

  • Ability to provide a safe, stable, and caring environment for the child(ren);

  • The extended network of support a parent may have;

  • Wants and desires of the child – the older the child is and the more capable they are of understanding the consequences and outcomes of living with one parent instead of the other the more likely the court will take their opinions into account;

  • A parent’s physical and mental health – including any history of violence, drug use or addiction that may impact the parent’s ability to care for the child; and

  • Any extreme views the parent may have on education, religion or discipline.


Before proceeding with your own matter, consider how you and your ex-partner foster your child(ren)’s happiness and development. Despite whatever differences you may have, do not try to cut your co-parent from the equation if they add value to the lives of your child(ren). No matter how messy the divorce may get, do not lose sight of what’s most important: the best interests of your child(ren).  

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