How BC Courts Decide the Best Interests of the Child

Almost every parenting dispute in British Columbia comes back to one question: what is in the child's best interests? It is a legal test, not a general feeling about which parent is better.

This article walks through section 37 of the Family Law Act, how family violence is treated, and what to expect if a court needs more information about your child.

This article covers the law of British Columbia.

The test and where it applies

In making an agreement or order about guardianship, parenting arrangements or contact, the parties and the court must consider the best interests of the child only. Government guidance describes it as a test of what best protects a child's physical, psychological and emotional safety.

No particular arrangement is presumed to be in the child's best interests, so each case is decided on its own facts. The Act also does not presume equal allocation of parental responsibilities, equal parenting time, or joint or separate decision-making.

The section 37(2) factors

The Act lists factors the court looks at. 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 family violence on the child's safety, security or well-being
• 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

The Act sets no age at which a child chooses. The child's views are one factor, weighed with the others.

Safety and family violence

An agreement or order is not in the child's best interests unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

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

When assessing family violence, the court must consider the nature and seriousness, 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, and any other relevant matter.

How a judge weighs the factors

Each case is decided on the child's best interests, with no arrangement presumed in advance. A court may consider a person's conduct only if it substantially affects one of the section 37(2) factors, and only to the extent of that effect. How a particular parent's behaviour fits this rule depends on the facts, so it is worth confirming with a lawyer.

To help weigh the evidence, a court in a Part 4 proceeding 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.

A court may also appoint a lawyer for the child if the conflict between the parties significantly impairs their capacity to act in the child's best interests and the appointment is necessary to protect those interests. The court may also admit reliable hearsay evidence from an absent child.

What to do next

Which court you are in changes how a case starts. In Provincial Court, you apply for a parenting order by filing Form 3 'Application about a family law matter'. In Supreme Court, a family case starts with Form F3 Notice of Family Claim under the Supreme Court Family Rules.

• Go through the factor list and note facts that relate to each one.
• Keep dated records of safety concerns, including messages and incidents.
• Focus your evidence on the child's needs, not on blaming the other parent.
• If you are in Provincial Court, complete the Parenting After Separation course before the first court date unless exempt.
• In Supreme Court the course is not mandatory, though the judge may suggest it.
• Speak with a family lawyer about how these factors apply to your situation.

Frequently asked questions