Family Law – Best Interests of the Child

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The recent decision AL v. LW, 2017 BCSC 964 [“AL”] illustrates how the court might apply the factors for determining the best interests of the child under BC’s Family Law Act [“FLA”], and also illustrates how a “section 211” report may assist the court in determining the best interests of a child.

A section 211 report refers to section 211 of the FLA which authorizes the court to appoint a person to assess the needs of a child, the view of a child or the ability and willingness of a party to satisfy the needs of a child.  These reports were sometimes called “custody and access reports” or “parenting reports”.

In AL, the father sought increased parenting time with a child. The parties had never married but had lived in a marriage-like relationship. The parties had executed a Separation Agreement which addressed guardianship and parenting responsibilities.

The court also had the benefit of a section 211 report prepared by Dr. England.

The court noted that the key legislative provisions of the FLA that relate to increasing parenting time are sections 37 and 40, which are reproduced below:

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) 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:

(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.

(3) 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.

(4) In making an order under this Part, 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.

40 (4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

(a)  that parental responsibilities should be allocated equally among guardians;

(b)  that parenting time should be shared equally among guardians;

(c)  that decisions among guardians should be made separately or together.

The Court placed the above provisions in context by adopting KDP v. ARK2011 BCSC 1085 (CanLII):

[1]        No parents are perfect. All have flaws of one kind or another. If families stay together, except in those rare circumstances in which a child is found to be in need of protection, the state and the courts allow imperfect parents to raise their children as best they can. The children, in most cases, are no worse for wear for the experience.

[2]        If families separate, however, and issues of custody and access arise, in the guise of determining the best interests of the child, a parent’s flaws of character and conduct are put under a microscope. In such circumstances, care must be taken not to lose sight of the strengths that a party brings to the challenge of raising a child.

As an illustration of how the courts will consider the individual subsections of section 37 of the FLA, refer to the below paragraphs from AL, as drafted by Mr. Justice Funt:

[65]        With respect to s. 37(2)(a), … the daughter’s health and emotional well-being would benefit from far greater time with her father. The mother and father each has the qualities of a good parent as does the mother’s common-law partner. I agree with Dr. England’s statement: “There is no reason to deprive [the daughter] of the benefit of having her father as fully involved in her life as possible”.

[66]        With respect to s. 37(2)(b) and (c), it is apparent that once settled with her father, the daughter enjoys a caring, nurturing, and loving relationship. The daughter enjoys being with her father. I find that it would be in the daughter’s best interests to have far greater contact with her father.

[67]        With respect to s. 37(2)(d), the predominant history of the child’s care has been with her mother. For this reason, the transition as Dr. England recommends is a prudent course which I adopt as appropriate in the case at bar. I also adopt Dr. England’s recommendation that the daughter have individual therapy sessions with a copy of Dr. England’s report given to the therapist. I will also order that a copy of these Reasons be given to the therapist.

[68]        With respect to s. 37(2)(e), the parenting time Dr. England recommends will provide the needed stability. The parents share the view that the current schooling arrangements are appropriate and there are no plans of either of the parties to move from the Victoria/North Saanich area.

[69]        With respect to s. 37(2)(f), I am satisfied that each of the mother, the father, and the mother’s common-law partner has the ability to exercise appropriately his or her responsibilities.

[70]        With respect to s. 37(2)(i), the Separation Agreement addresses most aspects of guardianship and parenting responsibilities. Although I will not order the appointment of a parenting co-ordinator, I would encourage the parties to retain a parenting co-ordinator. Although the costs associated with a parent co-ordinator are significant, the costs are likely less than those associated with mediation or returning to court. A parenting co-ordinator can also make decisions quickly as the need arises.

The Court ultimately permitted the father to have increased parenting time in accordance with the schedule and transition periods set out in Dr. England’s section 211 report.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.