How a BC Court Decides the Best Interests of the Child

If you are preparing for a family court matter in British Columbia, you will hear the phrase "best interests of the child" again and again. It is the test that sits underneath almost every decision about where a child lives and who makes decisions for them.

This article explains in plain words what the Family Law Act says the court looks at, how family violence is treated, and how a child's views fit in. It is general information, not advice on your own case.

This article covers the law of British Columbia.

The test looks at the child, not the parents

When parties make an agreement or a court makes an order about guardianship, parenting arrangements or contact, they must consider the best interests of the child only. The court is not trying to reward or punish a parent.

The Act also says an agreement or order is not in a child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. Government guidance describes the test the same way, as a question of what best protects a child's safety.

There is no starting assumption of equal time. The Act says no particular parenting arrangement is presumed to be in the child's best interests, and it does not presume equal parenting time, equal parental responsibilities, or joint or separate decision-making.

The factors the court weighs

The Act lists factors the court considers. They include the following:

• The child's health and emotional well-being.
• The child's views, unless it would be inappropriate to consider them.
• The nature and strength of the child's relationships with significant people.
• The history of the child's care.
• The child's need for stability.
• Each guardian's ability to exercise parental responsibilities.
• The impact of any family violence on the child's safety, security or well-being, and whether the violent person can care for the child.
• Whether cooperation between guardians is appropriate.
• Any civil or criminal proceeding relevant to the child's safety.

A court may consider a person's conduct only if it substantially affects one of these factors, and only to the extent of that effect. Bad behaviour that has no effect on the child is not the focus.

How family violence is assessed

Family violence is defined broadly. It includes physical abuse, sexual abuse, attempts at either, and psychological or emotional abuse such as intimidation, harassment, coercion, threats, stalking, unreasonable restrictions on financial or personal autonomy and intentional property damage. A child's direct or indirect exposure to family violence also counts.

When the court assesses family violence, it must consider matters such as:

• The nature and seriousness of the violence.
• How recently and how frequently it occurred.
• Whether psychological or emotional abuse forms a pattern of coercive and controlling behaviour.
• Whether it was directed at the child or the child was exposed to it.
• The harm to the child.
• Steps taken to prevent further violence.

The child's needs and views

The Act sets no age at which a child gets to choose. The child's views are one factor, considered unless inappropriate, and weighed with the others.

A court has tools to learn about the child. It may appoint a person such as a family justice counsellor, social worker or other court-approved person to assess the child's needs, the child's views, or a party's ability and willingness to meet the child's needs. The report goes to the court and, unless the court orders otherwise, each party, and fees may be allocated to a party. A views of the child report conveys the child's views without recommendations, and is different from that assessment.

If conflict between the parties significantly impairs their capacity to act in the child's best interests, the court may appoint a lawyer for the child where it is necessary to protect those interests. The court can also admit reliable hearsay evidence from an absent child or give other directions about how the child's evidence is received.

Preparing for court

• Think about each factor and what honest, specific examples you can give about the child's routine, health and schooling.
• Gather records of who has cared for the child and when, since the history of care matters.
• Keep any records of family violence, police or court proceedings that relate to the child's safety.
• Focus on how events affect the child rather than on blaming the other parent.
• Speak with a lawyer about how the factors apply to your situation before you file or respond.

Frequently asked questions