British Columbia Law
How BC Courts Decide Child Custody — The Best Interests Test Explained
When parents cannot agree on parenting arrangements, BC courts make binding decisions. Understanding how those decisions are made — what the law requires, what judges look at, and what genuinely matters — helps parents navigate one of the most important and emotionally charged aspects of separation.
BC No Longer Uses the Word "Custody"
The *BC Family Law Act* (FLA), which replaced the old *Family Relations Act* in 2013, eliminated the terms "custody" and "access." In their place, BC now uses:
- Guardianship — the legal status of a parent (or other person) who has parenting authority over a child
- Parenting Responsibilities — the specific decision-making powers a Guardian holds (healthcare, education, religious upbringing, extracurricular activities, and more)
- Parenting Time — the time each Guardian is physically responsible for the child's day-to-day care
This language shift was intentional: the law focuses on what parents owe to children — responsibilities — not what parents are entitled to claim.
The Governing Standard: Best Interests of the Child
Every parenting decision in BC — whether made by agreement or by a court — must be guided by the best interests of the child. This is the only test. The court does not consider which parent is more deserving, who behaved worse during the marriage, or which parent wants more time. The question is always: what arrangement best serves this child?
The FLA (s.37) lists specific factors the court considers:
- The child's health and emotional well-being
- The child's views and preferences, taking into account the child's age and maturity
- The nature and strength of the child's relationship with each parent, siblings, and other significant people
- Each parent's ability to exercise their parenting responsibilities
- The history of the child's care — who has primarily cared for the child
- The impact of any family violence, abuse, or neglect (given substantial weight under ss. 37–38)
- The child's need for stability, routine, and continuity in their care
- The desirability of maximizing contact with both parents — where it is safe to do so
- Any civil or criminal proceeding relevant to the child's safety
No single factor is automatically decisive. Courts weigh all factors in the context of the specific family.
Family Violence: A Special Consideration
The FLA treats family violence as a paramount consideration. If there has been violence, abuse, or threats — against the child, the other parent, or anyone in the household — the court must specifically assess:
- The nature and seriousness of the violence
- Whether the violence was a single incident or a pattern
- The impact of the violence on the child
- The risk of future violence
- Whether the person who used violence has taken steps to address it
A history of family violence can result in supervised parenting time, conditions on parenting, a protection order, or — in serious cases — denial of parenting time.
What Courts Generally Order
BC courts have moved away from treating parenting as a zero-sum competition. Common outcomes include:
- Shared parenting time — arrangements where children spend significant time with both parents (not necessarily equal time, but meaningful time with each)
- Primary parenting time — one parent has more than 60% of the time; the other has regular scheduled time
- Equal time — a 50/50 arrangement, ordered when evidence supports stability and cooperative parenting
- Sole decision-making responsibility — one parent makes major decisions; only ordered when the parents genuinely cannot communicate or cooperate, or where one parent's involvement poses a risk
The Child's Voice
BC courts take children's views seriously — but do not simply do what children say they want. A judge must give a child's preferences appropriate weight considering their age and maturity. A teenager's strong preference carries significant weight. A 5-year-old's stated preference carries some weight but is not determinative.
In disputed cases, a court may order a Section 211 report (also called a Views of the Child report or a Family Assessment) — prepared by a qualified professional who meets with the child and the parents and gives the court an independent assessment of the child's situation and needs.
The Presumption of Maximum Contact
BC law does not impose an automatic 50/50 presumption. What it does require is that courts consider the maximum contact principle — the idea that children generally benefit from meaningful relationships with both parents. Judges must consider how each proposed arrangement will affect the child's relationship with the other parent.
However, maximum contact is not an absolute rule. It yields where safety, the child's wellbeing, or other overriding best-interests factors require.
Changing a Parenting Order
Once a parenting order is made, it is not permanent. Either parent can apply to vary it — but only if there has been a material change in circumstances since the order was made. Courts do not revisit parenting orders simply because one parent is unhappy with them. A material change is one that, if it had existed at the time of the original order, would have resulted in a different order.
Going to Court vs. Reaching Agreement
Court is expensive, slow, and unpredictable. Most parenting matters — even difficult ones — can be resolved through mediation, collaborative law, or negotiated separation agreements. Courts in BC expect parties to attempt resolution before trial, and early settlement nearly always produces better outcomes for children than a contested hearing.
*This article is general information about BC family law. It is not legal advice. Contact Sea to Sky Law™ for a confidential consultation about parenting arrangements specific to your family.*
This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.