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Best Interests of the Child in Family Law

A core principle in the Family Law Act, , SBC 2011, c 25, is a consideration of the best interests of the child. When there is an agreement between parties or a court order is being made with respect to guardianship, parenting arrangements or contact with a child, both the parties and the court must consider the best interests of the child only (s. 37(1)). An agreement or order is in the child’s best interest if it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being (s. 37(3)).

In order 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 factors (s. 37(2)):
(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 the child's 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.

In assessing family violence, a court must consider all of the following factors (s. 38):
(a) the nature and seriousness of the family violence;
(b) how recently the family violence occurred;
(c) the frequency of the family violence;
(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;
(e) whether the family violence was directed toward the child;
(f) whether the child was exposed to family violence that was not directed toward the child;
(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;
(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;
(i) any other relevant matter.


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