Each week on the blog we tackle issues relating to family law. Any of these topics that relate to, or involve children always come back to one foundational piece of legislation – Section 37 of the Family Law Act.

This critically important section informs much of family law, impacting on cases in a simple but vital way.

Explaining Section 37: Why it’s Important

Unfortunately, when parents undergo a separation and resulting custody litigation, it’s easy to focus on their own interests while seeking an arrangement that works for them. This is a common mistake we see in family law that’s totally understandable. After all, family law is filled with emotionally charged events.

Section 37 states that when BC Family Law courts are making decisions relating to parenting, they must only consider the child’s best interests. While it’s often parents or guardians who bring cases to the court, their interests will always come second. Judges are duty bound to only consider the child, and whatever the most positive outcome for them will be.

To determine what is in the best interests of the child, judges will consider several factors in making their decision. These include the following:

• The child’s health and emotional well-being;
• The child’s views, unless it would be inappropriate to consider them;
• The nature and strength of the relationships between the child and significant persons in their life;
• The history of the child’s care;
• The child’s need for stability, given the child’s age and stage of development;
• 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;
• 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;
• Whether the actions of a person responsible for family violence indicate the person may be impaired in their ability to care for the child and meet the child’s needs;
• 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;
• Any civil or criminal proceeding relevant to the child’s safety, security or well-being.

The Result in Custody Disagreements

While the need to represent the best interests of a child can result in many different outcomes, BC Family Law courts have generally deferred to shared parenting as their preferred outcome. This is assuming that both parents are reasonably fit to act as guardians, regardless of any shortcomings or disagreements they might have with each other. It’s always highly recommended to seek advice from a family law expert in separation or custody cases.

Talk to a Family Lawyer

If you’re dealing with a sensitive family law matter such as a separation or custody of children, the team at Westside Family Law is here to help. Contact us to ensure this sensitive matter is handled properly.