What Does "Best Interests of the Child" Mean in BC?

You will hear the phrase from your lawyer, from your ex, from judges and associate judges, and from everyone else concerned about the children after a separation. Here is what it actually requires.

The factors in section 37(2) of the Family Law Act

Section 37(2) says all of the child's needs and circumstances must be considered, including these ten factors:

• 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 the significant people in the child's life.
• The history of the child's care — who has actually been doing the day-to-day parenting.
• The child's need for stability, given the child's age and stage of development.
• The ability of each guardian — or each person who seeks guardianship, parental responsibilities, parenting time or contact — to carry out those responsibilities.
• The impact of any family violence on the child's safety, security or well-being, whether the violence was directed at the child or at another family member.
• Whether family violence points to impaired caregiving — that is, whether the actions of the person responsible indicate they may be impaired in their ability to care for the child and meet the child's needs.
• Whether an arrangement that requires the guardians to cooperate is appropriate, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members.
• Any civil or criminal proceeding relevant to the child's safety, security or well-being.

Because the section says "including," that list is a floor rather than a ceiling: anything else genuinely relevant to the child's needs and circumstances can be considered too.

Two rules sit alongside the list. Under s. 37(3), 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. Under s. 37(4), a court may consider a person's conduct only if it substantially affects a factor set out in s. 37(2), and only to the extent that it affects that factor.

The section 38 family-violence factors

Where family violence is in play under s. 37(2)(g) or (h), section 38 of the Family Law Act requires the court to consider all of the following: the nature and seriousness of the family violence; how recently it occurred; how frequently; whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; whether the violence was directed toward the child; whether the child was exposed to family violence not directed toward the child; the harm to the child's physical, psychological and emotional safety, security and well-being as a result; any steps the person responsible has taken to prevent further family violence; and any other relevant matter.

Section 16 of the Divorce Act: the test in divorce proceedings

Parenting orders and contact orders made under the federal Divorce Act — the route where the parenting issues form part of a divorce — carry their own best-interests test in s. 16. Section 16(1) directs the court to take into consideration only the best interests of the child of the marriage, and s. 16(2) requires primary consideration to be given to the child's physical, emotional and psychological safety, security and well-being.

Section 16(3) lists eleven factors:

• The child's needs, given the child's age and stage of development, such as the need for stability.
• The nature and strength of the child's relationship with each spouse, each sibling and grandparent, and anyone else who plays an important role in the child's life.
• Each spouse's willingness to support the child's relationship with the other spouse.
• The history of care of the child.
• The child's views and preferences, given due weight according to age and maturity, unless they cannot be ascertained.
• The child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage.
• Any plans for the child's care.
• The ability and willingness of each person the order would apply to, to care for and meet the needs of the child.
• The ability and willingness of those same people to communicate and cooperate with one another on matters affecting the child.
• Any family violence and its impact — assessed through a further list of factors in s. 16(4), covering the nature, seriousness, frequency and timing of the violence, any pattern of coercive and controlling behaviour, whether it was directed at or witnessed by the child, the harm or risk of harm caused, compromised safety, the fear it caused, and any steps taken to prevent further violence and improve parenting.
• Any civil or criminal proceeding, order, condition or measure relevant to the child's safety, security and well-being.

Two more rules follow. Section 16(5) bars the court from considering past conduct unless it is relevant to that person's parenting time, decision-making responsibility or contact. Section 16(6) states the principle that a child should have as much time with each spouse as is consistent with the child's best interests. If your matter runs through a divorce, our guide to getting divorced in BC walks through the procedural steps.

How the test is applied

There is no formula and no scorecard. The factors are weighed against the facts of one particular family, which is why two households with similar schedules can end up with different parenting arrangements. That assessment has to be done whether you are applying for an order, negotiating directly, or working out an agreement through family mediation at our Surrey office.

Parenting arrangements are usually sorted out alongside financial questions. If support went unpaid or underpaid while the children were growing up, see our page on retroactive child support in BC.

Every family is different, and the s. 37 factors have to be applied to your own circumstances rather than to a general case. For more information, call us at (778) 381-9977 or book a free consultation with our Surrey family law team.