“Best Interests of the Child” – The Guiding Principle of Family Law

You are probably familiar with the term “best interests of the child”. It’s a term used frequently in family law and serves as an incredibly important guiding principle. But what does it mean, and how do we determine what is in a child’s best interests?

The following article will provide an overview of the best interests of the child principle and how it is applied under both the federal Divorce Act and the British Columbia Family Law Act.

Overview of “Best Interests of the Child”

The “best interests of the child” test is a core component of modern family law. It replaced the “tender years doctrine”, which previously held that a child under 5 years old belongs with their mother. The best interests of the child approach therefore provides a gender-neutral and less rights-based approach that focuses on the individual child and provides for the diversity of modern families.

The “best interests of the child” test can be found in both the federal Divorce Act and the British Columbia Family Law Act.

“Best Interests of the Child” Under the Federal Divorce Act

Section 16 of the federal Divorce Act provides that “the court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order”. In determining the best interests of the child, a court will consider all factors, including:

(a)   the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b)   the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c)   each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d)   the history of care of the child;

(e)   the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f)    the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g)   any plans for the child’s care;

(h)   the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i)     the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j)     any family violence and its impact on, among other things:

(i)     the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii)  the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k)   any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

In it’s assessment of best interests of the child, the court will give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. In allocating parenting time, the court is guided by the principle that the child should have as much time with each spouse as is consistent with their best interests.

Past conduct of any person will not be taken into account by the court unless it is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

 “Best Interests of the Child” Under the British Columbia Family Law Act

Section 37 of the provincial Family Law Act provides that, in making an agreement or order respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. This means that the best interests of the child is the sole factor that should influence such agreements or orders. To determine the best interests of the child, all of the child’s needs and circumstances must be considered, including:

(a)   the child's health and emotional well-being;

(b)   the child's views, unless it would be inappropriate to consider them;

(c)   the nature and strength of the relationships between the child and significant persons in their life;

(d)   the history of the child's care;

(e)   the child's need for stability, given the child's age and stage of development;

(f)    the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g)   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;

(h)   whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i)     the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j)     any civil or criminal proceeding relevant to the child's safety, security or well-being.

Generally speaking, the child’s emotional health and well-being has been held to be the most important factor for assessing best interests of the child, especially at a young age. The court has jurisdiction to consider the child’s views using various methods, such as appointment of a family justice counsellor or social worker to assess the views of the child.

Mirroring the language of the Divorce Act, the Family Law Act states that 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.

A person’s conduct may only be considered if it substantially affects one of the factors listed above for determining the best interests of the child, and only to the extent that it affects that factor. This means that a parent’s conduct unrelated to the child will not be taken into account for assessing the best interests of the child, unless a clear and substantial link can be drawn between the conduct and one or more of the above factors.

Navigating the family law system can be complicated and add stress to an already difficult time. If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.