What are Best Interests of the Child in BC?

The main guiding principle in all cases involving guardianship, parental responsibilities, parenting time, and contact with a child in British Columbia is the best interests of the children.

Unfortunately, this sometimes gets forgotten in the emotional turmoil of separation and divorce.

What does it mean exactly—and how are the best interests of children determined by parents and by the BC courts?

What is considered the best interests of the child in BC?

Parents sometimes need to be reminded that the BC courts prioritize the best interests of the child in custody cases.

In fact, under the terms of BC’s Family Law Act (Section 37), the best interests of the child are the only consideration when making decisions that affect the child. As such, what’s best for the child’s parents or guardians is excluded from the decision-making process in BC courts.

“Best interests” refer to the physical, psychological, and emotional safety, security, and well-being of the child.

How to determine the best interests of the child

If the parents cannot decide on a suitable custody arrangement that meets all the child’s needs, the court must make an order that protects the child’s physical, psychological, and emotional safety, security, and well-being.

When determining the best interests of the child, the BC courts will consider multiple factors, as follows:

• The child’s age, stage of development, health, and well-being
• The child’s preferences (if mature enough to express a meaningful opinion)
• The existing bonds between the child, each parent, and other significant persons in the child’s life
• The history of the child’s care
• The stability of the environment provided by each parent
• The ability of each parent/guardian to exercise their parental responsibilities
• Any history of family violence, abuse or criminal activity
• The willingness of the parents to cooperate and collaborate on the child’s care

It should be noted that the fault of either parent for the marriage breakdown is not a factor considered in child custody decisions in British Columbia.

Does shared or sole custody serve the best interests of the child in BC?

The general presumption is that the child benefits from the emotional, physical, and psychological support of both parents. This is seen as generally promoting the child’s well-being and development. By extension, this best serves the child’s best interests—unless there are factors that make it not so.

The preference in custody decisions in BC, therefore, is for parents to share rights and responsibilities for their children’s care after they separate. Usually, practical considerations mean that the child primarily resides with one parent while the other is allocated parenting time according to an agreed schedule—but both parents share decision-making responsibilities.

The specific circumstances in each case are closely examined and, sometimes, the best interests of the child may be best assured by granting sole custody to one parent. This is especially the case if the other parent is deemed unfit to carry out parental responsibilities or lives too far away to make a meaningful contribution to the child’s life. That parent will still retain parental rights in most cases, though.

In rare cases, restricting or removing the parental rights of one parent may be necessary to protect the well-being of the child.

Are children involved in the legal child custody process in BC?

The BC courts shield children from divorce and custody proceedings as much as possible and are cautious about involving them at all in such matters. Children do not participate directly in divorce proceedings and may not influence the outcome, depending on their level of maturity. However, in some cases, a child may need to be interviewed before final custody decisions are made.

Legally, all decisions regarding the welfare of the children after a divorce must be made or approved by the courts in British Columbia. The courts recognize the vulnerability of children in these situations.

What if one parent challenges the best interests of the child?

Separations and divorces can become highly emotional, especially where children are involved and/or perceived wrongdoing by either parent has led to the marriage breakdown.

Sometimes, children can be used as a type of “weapon” to exact revenge on the other parent. For instance, the parent with whom the child primarily lives denies parenting time and contact with the child to the other parent. This is, generally speaking, strictly against the wishes of the court if shared decision-making and parenting have been ordered.

Such actions by a parent may be deemed harmful to the children—and, therefore, be subject to court action. The parent who is denied access to the child can petition the BC courts to consider the case.

The judge may be able to take the following actions:

• Specify a period for the time with the child to be made up
• Require both parents to attend family dispute resolution or counselling to help resolve the underlying issues
• Order payment for any expenses incurred as a result of the denial of time with the child, or
• Require the other parent to pay a fine or restitution

In most cases, judges do not want to involve law enforcement or impose a harsh sentence on a parent who denies access as this might impact the ability to parent the child. That would likely be contrary to the child’s best interests.

In some limited instances, a parent may justifiably restrict access to the child for the other parent. Most notably, if there is a reasonable risk of harm from family violence, abuse or other detrimental behavior related to impairment by drugs or alcohol, a parent would be within his/her rights to deny access at parenting time.

Non-payment of child support by the non-residential parent is not, however, a justifiable reason to restrict contact with the child by the residential parent. Child support payments can be enforced using other measures.

If you’re considering child custody matters in the Langley area of British Columbia, DSG Family Law offers a free and confidential initial consultation to assess your situation and outline your legal options. Speak with our family lawyer today.