The Best Interests of the Child Test in BC

The Only Consideration in a BC Parenting Case

British Columbia's Family Law Act puts it in one sentence: 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" (s. 37(1)). Only is the load-bearing word. Not what is fair between the adults, not who was wronged in the separation. The child.

SiLaw Group Family Lawyers is a boutique family law and mediation firm in South Surrey. Family law is the only kind of law we practise, and we work in English and Punjabi. This page covers what the two statutes say and how we build a parenting case around them. For a plain-language walk through the factors, with everyday examples, read our full guide to the best interests of the child; it goes deeper than any service page should.

The Family Law Act Factors

All of the child's needs and circumstances must be considered, including the factors listed in section 37(2) of the Family Law Act:

• 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 relationships between the child and significant persons in the child's life;
• the history of the child's care;
• the child's need for stability, given the child's age and stage of development;
• the ability of each person who is a guardian or seeks guardianship, or who has or seeks parental responsibilities, parenting time or contact, to exercise their responsibilities;
• the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
• whether the actions of a person responsible for family violence indicate that the person may be impaired in their ability to care for the child and meet the child's needs;
• the appropriateness of an arrangement that would require the child's guardians to cooperate, 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.

Two guardrails sit around that list. An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being (s. 37(3)). And a court may consider a person's conduct only if it substantially affects one of the factors, and only to that extent (s. 37(4)), which is why airing every grievance rarely helps a parenting case.

Where family violence is raised, section 38 directs the court to assess it: its nature and seriousness, how recently and how often it occurred, whether there is a pattern of coercive and controlling behaviour, whether the child was targeted or exposed, the harm to the child, and any steps taken to prevent it from happening again. If this is part of your situation, see our family violence services page.

The Divorce Act Test for Divorcing Parents

Married parents in a divorce also deal with the federal Divorce Act, section 16. The structure matches: the court takes into consideration only the best interests of the child in making a parenting or contact order (s. 16(1)). The Act adds a primary consideration: the child's physical, emotional and psychological safety, security and well-being come first when weighing the factors (s. 16(2)).

The factors themselves (s. 16(3)) cover familiar ground: the child's needs and stability given age and stage of development, the strength of relationships with each spouse, siblings, grandparents and other important people, each spouse's willingness to support the child's relationship with the other spouse, the history of care, the child's views and preferences given due weight by age and maturity, cultural, linguistic, religious and spiritual upbringing including Indigenous heritage, plans for the child's care, each person's ability and willingness to care for the child and to communicate and cooperate, any family violence and its impact, and any relevant proceedings or orders. Past conduct counts only if relevant to parenting (s. 16(5)), and the court gives effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child (s. 16(6)), a principle governed by the child's interests, not a right to equal time.

The two statutes point in the same direction, and you do not have to master both; that is our job. Which Act applies is covered in our guide to divorce in BC.

How We Build a Case Around the Test

A parenting case is won on evidence organized around the factors, not on adjectives. In practice that means:

• Care history. School records, medical appointments, activity registrations and daily routines that show who has done what; the history of care is a listed factor in both Acts.
• Stability and plans. A concrete proposal for the child's week, not just objections to the other side's. Our parenting plan guide shows what a court-ready plan covers.
• Communication. Calm, businesslike records of co-parenting communication, which speak to the cooperation factors. Our co-parenting communication guide helps you build that record.
• Safety. Where family violence is present, evidence addressed to the section 38 matters, gathered with proper support.

The same test governs settlement, because section 37(1) binds the parties, not just judges, and courts can set aside parenting agreements that fail it. Family mediation with us runs on the same factors. And because the children need looking after through all of it, our guide on talking to children about separation helps you protect the well-being the test exists to serve.

Frequently Asked Questions

At What Age Can a Child Decide Where to Live in BC?

Neither statute names an age. The Family Law Act considers the child's views unless it would be inappropriate to do so, and the Divorce Act gives the child's views due weight according to age and maturity. In practice, weight grows as children mature; no switch flips at a particular birthday.

Does the Test Favour Mothers Over Fathers?

No. The factors in both Acts say nothing about a parent's gender. They ask about the child's needs, relationships, care history, safety, and each person's ability and willingness to parent.

How Does Family Violence Affect Parenting Arrangements?

Directly. Family violence appears in the factor lists of both statutes, each Act sets out how it must be assessed, and no agreement or order passes the test unless it protects the child's safety, security and well-being to the greatest extent possible.

Talk to a Family Lawyer About Your Parenting Case

If you want an honest read on how the best interests of the child test applies to your situation, the first 30 minutes with us are free, in English or Punjabi, by phone, video, or in person at Suite 201, 3108 Croydon Drive in South Surrey. Call (778) 381-9977 or Book Now for a Free Consultation.

This page is legal information, not legal advice. For advice about your own situation, speak with a lawyer.