BC's Family Law Act and Canada's Divorce Act both use a 'best interests' test to resolve parenting disputes. Here's what courts look at - and how you can use this to reach a better parenting agreement out of court.
When parents separate or divorce in British Columbia, one of the most critical questions is: who gets parenting time, custody, and decision-making authority over the children? The answer is governed by the "best interests of the child" test - a legal standard that applies in every parenting dispute, from settlement negotiations to contested court hearings.
Understanding what "best interests" actually means - and how courts apply it - is essential if you want to negotiate a parenting agreement that protects your relationship with your children.
What Is the "Best Interests" Test?
Both BC's Family Law Act and Canada's Divorce Act require that parenting orders and agreements be made in the "best interests of the child." The test is not about what is best for the parents - it is purely about what arrangement will serve the child's welfare, safety, and development.
The test is deliberately broad and flexible, allowing courts to consider the unique circumstances of each child and family. It is not a formula or checklist; it is a principle that guides decision-making.
The Statutory Factors
The Family Law Act and Divorce Act both list factors that courts must consider when determining a child's best interests:
1. The child's own views and preferences - depending on the child's age and maturity. A teenager's preference carries significant weight; a young child's preference is considered but not determinative.
2. The child's physical, emotional, and developmental needs - including health, education, and sense of safety.
3. The effect of any change in the child's circumstances - children benefit from stability. An arrangement that minimizes disruption to school, friendships, and routine is favored.
4. The strength of the child's relationship with each parent - and the quality of care each parent has historically provided.
5. The willingness and ability of each parent to care for the child and meet their needs - including physical care, emotional support, medical decisions, and education.
6. The willingness and ability of each parent to support the child's relationship with the other parent - courts favour a parent who encourages the child's bond with the other parent, not one who tries to exclude or alienate the other parent.
7. Any history of family violence or abuse - including domestic violence between the parents, abuse of the child, or abuse of pets or property (which may indicate risk to the child).
8. Any other relevant circumstances - including the cultural, religious, or spiritual significance of parenting arrangements, extended family relationships, or special needs of the child.
What Courts Do NOT Consider
It is equally important to know what courts explicitly reject in best interests analysis:
• Gender of the parent - The days of a presumption that mothers should have custody are long gone. Both parents stand on equal footing.
• The wishes of extended family - Grandparents and other relatives may have preferences, but the focus is on the child's best interests with their parents.
• One parent's greater financial means - Money alone does not determine parenting arrangements. A less wealthy parent with a strong relationship with the child can have equal or primary parenting time.
• Moral judgments about a parent's lifestyle - A parent's dating, sexual orientation, or personal choices are relevant only if they directly affect the child's welfare.
Common Disputes and How Courts Resolve Them
1. Primary Residence (Where Does the Child Live Most of the Time?)
Courts consider which parent has been the child's primary caregiver, who has handled school enrolment and homework, who attends medical appointments, and who is available for day-to-day parenting. The parent with the stronger history of hands-on care often becomes the primary residential parent.
2. Parenting Time (How Often Does the Child See Each Parent?)
While equal 50/50 parenting time is becoming more common, it is not the default. The court focuses on what maximizes meaningful time with both parents while minimizing disruption. A young child may need more frequent, shorter transitions; a teenager might prefer fewer, longer blocks of time.
3. Decision-Making Authority
Parents may have:
• Sole decision-making (one parent decides on education, medical treatment, religion)
• Joint decision-making (both parents must agree; decisions cannot be made unilaterally)
• Divided decision-making (each parent decides certain categories; e.g., one parent decides education, the other decides religion)
Courts grant sole decision-making only when a parent has demonstrated an inability to cooperate or when one parent has historically made all decisions and the arrangement is working.
4. Parental Alienation and Gatekeeping
A parent who actively discourages or prevents the child's relationship with the other parent is acting against the child's best interests. Courts will sanction this behaviour, potentially by increasing the excluded parent's time or transferring decision-making authority.
5. Relocation
If one parent wishes to move away with the child, the court applies a specific test: whether the move is in the child's best interests, considering the child's relationship with the other parent, the quality of life in the new location, and the purpose of the move.
How to Use This in Your Negotiation
When negotiating a parenting agreement, frame your proposals around best interests:
• EMPHASISizE stability - Show how your proposed arrangement minimizes disruption to school and routine.
• Document your involvement - Keep records of medical appointments, school events, homework help, and day-to-day care. This evidence supports your case if negotiation fails.
• Show respect for the other parent's relationship with the child - Even if you are in conflict, demonstrating willingness to support the child's relationship with the other parent is powerful.
• Focus on the child's needs, not your preferences - Courts are skeptical of arrangements that seem designed to benefit a parent at the child's expense.
• Consider mediation - A family law mediator can help both parents focus on the child's best interests and move past parental conflict.
Our Approach
At Sea to Sky Law™, we help parents understand their rights and negotiate parenting arrangements that truly serve their children's welfare. Whether through negotiation, mediation, or litigation, we ensure that the child's best interests - not parental preferences - drive the outcome.
If you are facing a parenting dispute in British Columbia, contact us for a free intake call. We will review your situation and advise you on what a court would likely order, and how to reach a better agreement through negotiation or mediation.
No. BC courts focus on the best interests of the child, not a presumption of equal time. Equal parenting time is increasingly common, but the court considers what arrangement best serves the child's wellbeing, stability, and relationships with both parents.
There is no set age. Courts consider a child's views and preferences based on their age and maturity. Teenagers' preferences carry significant weight but are not determinative. A Section 211 Views of the Child report may be ordered to give younger children a voice.
Parental alienation occurs when one parent systematically undermines the child's relationship with the other parent. BC courts treat this as contrary to the child's best interests and may respond by increasing the alienated parent's time, restricting the alienating parent's decision-making, or in severe cases, changing primary residence.
Not without the other parent's consent or a court order permitting relocation. The relocating parent must give 60 days' written notice and prove the move is in the child's best interests, considering the impact on the child's relationship with the other parent.