Short answer: Under section 37 of BC’s Family Law Act, the best interests of the child is the only consideration in any parenting decision. Section 37(2) lists the factors a court must weigh, including the child’s health and well-being, their views, their relationships, the history of care, their need for stability, and any family violence. An arrangement meets the standard only if it protects the child’s safety, security, and well-being to the greatest extent possible.
When parents or judges make decisions about parenting – including decisions about guardianship, parental responsibilities, and contact with a child – BC family law is clear that the best interests of the child are the only consideration. Under BC family law, an agreement or order is in the best interests of the child if it protects the child’s physical, psychological, and emotional safety, security, and well-being.
I have previously discussed the application the “best interests of the child” test in the context of grandparent access, international child custody matters, and resolving parenting conflicts with the assistance of a parenting coordinator. The legal test of the “best interests of the child” also applies to adoption matters and was recently applied when determining whether to grant an adoption order allowing a parent to adopt her own child.
Best interests of the child and adoption
In Re: C.J.C.B., 2016 NBCA 4 a single mother (“R.C.”) applied to the court seeking to adopt her own biological child to the exclusion of the other biological parent. The child was born in September 2014 following a brief courtship with the child’s biological father. R.C. sought to adopt the child in her name alone, as the biological father’s name was not on the birth certificate, he never developed a parental bond with the child, did not wish to do so, and agreed to the child’s adoption by R.C. The main argument in support of R.C.’s application to adopt her biological child in her name alone was based her contention that the child’s sense of continuity needed to be ensured, and that adoption was the only way to guarantee such continuity free from the risk of disruption by the father if the father subsequently attempted to get involved in the child’s life. The trial judge refused to make the order and R.C. appealed that decision.
Best interests of the child are the only consideration
The Court of Appeal upheld the trial judge’s refusal to grant the adoption order. In so doing, the appeal court agreed that there may indeed be particular circumstances where it is in the best interests of the child to make an adoption order allowing a parent to adopt his or her own child to the exclusion of the other biological parent. However, the issuance of such an order could have significant negative effect on the rights of the child, which must be weighed in determining whether an adoption order is in the child’s best interests:
[12] However, in general, courts must keep in mind that by issuing such an order, they could cause the child to lose certain rights such as half of his or her legal family, inheritance rights with respect to his or her father or mother, the right to a possible support allowance, as well as any other right arising from a father or mother’s obligations.
The appeal court was of the opinion that R.C. did not establish circumstances which would warrant the adoption order. The evidence was clear that the child has a stable life, thanks to R.C., and there was nothing to indicate that the child’s sense of continuity was threatened. It was purely speculative to say that the father’s eventual return into the child’s life would pose a risk to the child’s sense of continuity. The best interests of the child must be determined on the basis of the evidence rather than on speculation. The court also noted that if a threat to the best interests of the child did materialize in the future, the court could intervene at that point to put an end to such a danger.
Take home point on “best interests of the child”
The best interests of the child are the only consideration when it comes to decisions about parenting. A parent’s interests or concerns, however sincere and pressing, are second to those of the child and a decision in the best interests of the child must be based on the facts rather than speculation. In some circumstances, it may be in the best interest of the child for a parent to be permitted to adopt his or her own biological child, to the exclusion of the other parent. However, courts must weigh the fact that by issuing such an order, they could cause the child to lose certain rights such as half of his or her legal family, inheritance rights with respect to the other parent, the right to a possible support allowance from the other parent, as well as any other right arising from the other parent’s obligations.
The statutory factors behind “best interests”
“Best interests of the child” is not left to a judge’s instinct. Section 37(2) of the Family Law Act sets out the factors that must be considered, and a court has to work through the ones that apply to the family in front of it. They include:
- 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 each guardian, parent, and other significant people;
- the history of the child’s care;
- the child’s need for stability, given their age and stage of development;
- each guardian’s ability to exercise their responsibilities;
- the impact of any family violence on the child’s safety and well-being;
- whether an arrangement that requires the guardians to cooperate is workable;
- any civil or criminal proceedings relevant to the child’s safety or well-being.
No single factor decides the outcome. The weight each one carries shifts with the facts — a toddler’s need for stable routine and a teenager’s expressed preference do not pull with the same force, and the same list can point in different directions for two children in the same household.
Safety sets the floor
Section 37(3) adds a rule that sits above the balancing exercise: an arrangement is in the child’s best interests only if it protects the child’s physical, psychological, and emotional safety, security, and well-being to the greatest extent possible. Safety is not one factor traded off against the others. It is the floor the whole arrangement has to clear. A schedule that looks fair to the adults still fails the test if it leaves the child exposed.
Family violence is assessed on its own terms
Where family violence is alleged, the analysis does not stop at whether it happened. Section 38 directs the court to weigh a set of specific considerations: the nature, seriousness, and frequency of the violence; when it last occurred; whether it was directed at the child or witnessed by the child; the harm to the child’s safety or development; and whether the person is likely to continue. The point is to gauge the real effect on the child rather than to reach a verdict on the adults, which is why these findings can shape parenting time and the conditions attached to it.
How the child’s own views come in
The child’s views are a listed factor, not a veto. A court considers them unless it would be inappropriate to do so, weighing them against the child’s age and maturity. Older, more mature children tend to have their preferences given more weight, but even a clear preference is measured against everything else on the section 37(2) list. Those views often reach the court through a “Hear the Child” report or a views-of-the-child report prepared by a neutral professional, so the child is heard without being put in the middle of the dispute.
The vocabulary the statute uses
British Columbia dropped “custody” and “access” when the Family Law Act came into force. Parenting decisions now turn on guardianship, parental responsibilities, and parenting time, while a non-guardian’s time with a child is called contact. The best-interests test in section 37 governs all of them. Getting the terms right matters, because the older words map onto rights the current statute no longer frames that way — the focus is on the child’s interests, not a parent’s claim.
Frequently asked questions
What does “best interests of the child” legally mean in BC?
Under section 37 of the Family Law Act, the best interests of the child is the only consideration in decisions about guardianship, parenting arrangements, and contact. Section 37(2) lists the factors a court must weigh, and section 37(3) requires that any arrangement protect the child’s physical, psychological, and emotional safety, security, and well-being to the greatest extent possible.
What factors does a BC court consider under section 37(2)?
The factors include 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; the history of the child’s care; the child’s need for stability; each guardian’s ability to exercise their responsibilities; the impact of any family violence; whether a cooperative arrangement is workable; and any relevant civil or criminal proceedings. No single factor is decisive.
How much say does a child have in parenting decisions?
The child’s views are a factor the court must consider unless it would be inappropriate, weighed against the child’s age and maturity. Older and more mature children usually have their preferences given more weight, but a child’s view does not decide the matter on its own. Those views often reach the court through a neutral “Hear the Child” report.
How does family violence affect a best-interests decision?
Section 38 of the Family Law Act sets out specific considerations for family violence, including its nature, seriousness, and frequency, how recently it occurred, whether the child was targeted or witnessed it, the harm to the child, and whether it is likely to continue. These findings can shape parenting time and the conditions placed on it.
Does BC still use the words “custody” and “access”?
No. The Family Law Act replaced “custody” and “access” with guardianship, parental responsibilities, and parenting time, while a non-guardian’s time with a child is called contact. The best-interests test in section 37 applies to all of these decisions.
Disclaimer: This page is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC law and procedure change, and the outcome of any case depends on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia family lawyer. Illustrative examples do not guarantee similar outcomes in any specific case.