Parents caught up in custody litigation often forget about the best interests of the child and focus on their interest and what suits them. This is a mistake that many make during family law litigation. Parents cannot always be blamed for such mistakes because family law is filled with emotional pain. Sometimes children suffer without parents realizing that they are harming them.

What is the Best Interests of the Child Under the BC Family Law Act?

The best interests of the child means looking at any custody situation from the child’s eyes and seeing what parenting situation suits the child’s best interests. Children benefit the most from the love and care of both parents regardless of who was more involved during the marriage or relationship. Separation is a new phase of life and different arrangements regarding custody may need to be made to save the best interests of the child.

Best Interests of the Child – Examples of Violating this Principle

For example, you may say your husband does not deserve to see your children because he cheated on you. The inference that a cheating husband cannot be a good father is where your mistake lies. Your husband may cheat on you but that does not mean he will cheat on his children or not give them the love and care they deserve.

Same goes for a husband who thinks his wife is not a fit mother because she was too irrational or unstable during the marriage. Once again, she can be the most stable and loving mother children could ask for despite what her husband may believe.

The Best Interests of the Child is Love – From Everyone

The biggest thing your children need during their growth is love and they must get as much love as possible from you, your ex-spouse and those around them. Without love and care, children can be traumatized for the rest of their lives. They can develop mental illnesses such as depression, anxiety, OCD and narcissistic personalities due to being refused love and care or feel abandoned because a parent refused to let the other parent care for them.

Courts recognize the mistakes that can damage children for life so when it comes to custody and parenting time, strictly only the best interests of the children are concerned. This concern has been codified in s.37 of the Family Law Act:

Best interests of the Child Under the BC Family Law Act

The BC Family Law Act states:

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.

Determining the Best Interests of the Child

To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

  1. the child’s health and emotional well-being;
  2. the child’s views, unless it would be inappropriate to consider them;
  3. the nature and strength of the relationships between the child and significant persons in the child’s life;
  4. the history of the child’s care;
  5. the child’s need for stability, given the child’s age and stage of development;
  6. 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;
  7. 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;
  8. 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;
  9. 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;
  10. any civil or criminal proceeding relevant to the child’s safety, security or well-being.

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.

In making an order….a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.”

Shared or Sole Custody Based on the Best Interests of the Child

Nowadays, the courts will assume shared parenting of children if both parents are reasonably fit to take care of the children regardless of their shortcomings. In custody or parenting time litigation, often the mother will make multiple allegations against the father for not being sufficiently involved in the lives of the children or harming them one way or the other.

Separation is a new phase of life. The father may have taken a lesser role in the care of the children during the marriage but that does not mean he is not fit to take care of them after separation. The moe love and affection the children receive from both parents, the better.

In some situation, sole custody or primary residence will be in the best interests of children because one parent is better fit to care for the children or if the distance between the residences does not allow for shared parenting.

To assess the best interests of your child and obtain advice on how to proceed on custody issues, please contact us. We specialize in custody matters and are very passionate about reaching a resolution for your custody concerns.

The contents of this page were updated in August, 2017 for more freshness, accuracy and comprehensiveness. 

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