Back

The Best Interests of a Child

November 23, 2021

British Columbia

,

Canada

Issue

In what circumstances will the court order that a step-parent become a child's legal guardian?

Conclusion

Under section 37 of the BC Family Law Act, in making an agreement or order respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. 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. (Family Law Act)

In confirming the paramountcy of the best interests of the child, s. 37 makes consideration of certain matters mandatory. These include: the child’s views (unless it would be inappropriate to consider them); the child’s need for stability; the appropriateness of any arrangement that requires cooperation between parents; and any impact that may have on the well being of the child or other family members. This section further confines consideration of a person’s conduct to circumstances in which that conduct substantially affects a factor set out in s. 37(2). (N.R.G. v. G.R.G.)

Section 39(4) of the FLA states that a person does not become a guardian of a child by reason only of marriage to a child’s guardian, therefore, a step-parent is not automatically a guardian of a child. Section 51 allows the court to appoint a person as a child’s guardian. Subsection (2) describes the evidence which must be provided to the court for such an application and subsection (4) insists that if a child is 12 years of age or older, the court must not appoint a person other than a parent as the child’s guardian without the child’s written approval, unless satisfied the appointment is in the best interests of the child. When the appointment of a person as guardian will be improving the circumstances of the children, the Court is more likely to grant guardianship. (B.A.S. v. S.R.S.)

The dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. The law gives rights to the natural parents of a child in order that such very important and natural bonding may be protected and fostered, in the best interests of the child. The court recognizes those rights on that basis and for that purpose. But where such bonding does not exist between the natural parent and child, having instead developed between the child and other parent figures, the court must perforce give recognition to the facts of the case accordingly. To do otherwise would be to substitute an empty formula for the substance which the law must embody and express. (King v. Low)

In C.L.M. v. K.F.K., the father's ex-spouse (common law) was seeking custody of the child after the break-down of the relationship, on the basis that the father was abusing the child. Davies J. granted joint guardianship of the child.

In B.A.S. v. S.R.S., the father applied to vary parenting arrangements on an interim basis and to appoint his wife, as a guardian. Sharma J. granted that relief. In doing so, Sharma J. had considered the children’s health and emotional well-being; the children’s views; judicial interview of the child; the nature and strength of the relationships between the children and significant persons in the children’s lives; history of the children’s care; the children’s need for stability. Sharma J. was satisfied that the step-mother has satisfied all the evidentiary requirements to become a guardian as set out in the Family Law Act Regulation, BC Reg. 347/2012, s. 26.1 and the parties’ son, who is over the age of 12, had provided his written approval.

Law

Section 37 of the British Columbia Family Law Act, SBC 2011, c 25 mandates that in making an agreement or order respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only:

Best interests of child

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.

In N.R.G. v. G.R.G., 2017 BCCA 407 (CanLII), the Court of Appeal noted that consideration of a person’s conduct is confined to circumstances in which that conduct substantially affects a factor set out in s. 37(2) of the Family Law Act, SBC 2011, c 25:

[43] It can be seen that in confirming the paramountcy of the best interests of the child, s. 37 makes consideration of certain matters mandatory. These include: the child’s views (unless it would be inappropriate to consider them); the child’s need for stability; the appropriateness of any arrangement that requires cooperation between parents; and any impact that may have on the well being of the child or other family members. This section further confines consideration of a person’s conduct to circumstances in which that conduct substantially affects a factor set out in s. 37(2).

In B.A.S. v. S.R.S., 2015 BCSC 878 (CanLII), the father applied to vary parenting arrangements on an interim basis and to appoint his wife, as a guardian. Sharma J. granted that relief. In doing so, Sharma J. had considered the children’s health and emotional well-being; the children’s views; judicial interview of the child; the nature and strength of the relationships between the children and significant persons in the children’s lives; history of the children’s care; the children’s need for stability. Sharma J. was satisfied that the step-mother has satisfied all the evidentiary requirements to become a guardian as set out in the Family Law Act Regulation, BC Reg. 347/2012, s. 26.1 and the parties’ son, who is over the age of 12, had provided his written approval:

[1] This is an application by the respondent father, S.R.S., to vary current parenting arrangements on an interim basis and to appoint his wife, S.S., as a guardian. The claimant mother, B.H., opposes that relief.

[...]

The children’s health and emotional well-being

[...]

The children’s views

[...]

Judicial interview of the child

[...]

The nature and strength of the relationships between the children and significant persons in the children’s lives

[...]

History of the children’s care

[...]

The children’s need for stability

[...]

Other considerations

[49] I have considered s. 37(f), (i) and (j) and there was no evidence before me that these factors have a bearing on the issues in this case.

[50] This dispute is bitter. It is clear the parties are not working together well. This is tragic and does nothing to promote the well-being of their children.

[...]

[54] I am persuaded on a balance of probabilities that E.S. was living with B.H. prior to December 2012. The fact they lived together may not have been problematic about any determination about parenting arrangements, but the fact the claimant has not been forthright with the court and the respondent about who is sharing a home with the children is problematic.

[...]

[57] She exhibits the same attitude toward the role S.S. has in her children’s life. Dr. Elterman makes it very clear how valuable S.S. is and the positive impact she has had on the children. Other than the claimant’s accusations of attempts to interfere with parenting, there is no reliable evidence to contradict Dr. Elterman’s conclusion. The respondent and S.S. deposed that they have requested the claimant to contact S.S. and S.S. attested she hopes to work cooperatively with B.H.

[...]

[66] This case is extremely difficult to decide. The claimant currently only has her children living with her about five days a month (other than holidays and the summer) and the respondent is seeking to reduce that. The fragility of her relationship with her children is a serious concern for them, notwithstanding they have indicated a desire to make a change. A crucial issue is whether or not the orders sought will further impair that relationship.

[...]

[70] I find the evidence supports the respondent’s assertion that the children’s grades and well-being has improved since they have moved in with him and his wife. The nature of the children’s relationship with S.S. not only contributes to that well-being but also to their stability. I also find the children’s relationship with the claimant will be further harmed if they spend two weekends per month with the claimant at the expense of their extra-curricular activities because it is more likely than not that they will resent missing their activities and place the blame on the claimant.

[...]

GUARDIANSHIP

[73] Section 39(4) of the FLA states that a person does not become a guardian of a child by reason only of marriage to a child’s guardian, therefore, a step-parent is not automatically a guardian of a child. Section 51 allows the court to appoint a person as a child’s guardian. Subsection (2) describes the evidence which must be provided to the court for such an application and subsection (4) insists that if a child is 12 years of age or older, the court must not appoint a person other than a parent as the child’s guardian without the child’s written approval, unless satisfied the appointment is in the best interests of the child.

[74] S.S. has satisfied all the evidentiary requirements to become a guardian as set out in the Family Law Act Regulation, BC Reg. 347/2012, s. 26.1 (Form 5 of Appendix A) and the parties’ son, who is over the age of 12, has provided his written approval.

[75] I am satisfied on a balance of probabilities that it is in the children’s best interest that the person looking after them for the majority of time can exercise certain parenting responsibilities. The mother has offered no evidence or reasonable argument why S.S. should not be recognized as the children’s guardian and her reluctance to accept S.S. as a step-parent in her children’s lives has caused communication problems in relation to the children. Indeed, the claimant relies on S.S.’s lack of legal status as an excuse not to communicate with her.

[76] As claimant’s counsel suggested in argument, if S.S. is appointed a guardian, then all of the parties will have the legal obligation to consult one another regarding the children. I see this as only improving the circumstances of the children and as even more necessary as the children enter their teenage years. Therefore, pursuant to s. 51 of the FLA, I order that S.S. is a guardian of the children.

[77] Pursuant to s. 40, only a guardian may have the parenting responsibilities described in s. 41 and, according to s. 40(3), these parenting responsibilities can be allocated to one or more guardian. I find, in the circumstances, it is in the children’s best interest that S.S. be restricted to only exercise those parental responsibilities identified in s. 41(a), (d), (f), (h) and (j) of the FLA. This list can be expanded (but not reduced) without court order if the parties and S.S. consent in writing to do so.

[78] The respondent has been successful in this Application and is entitled to his costs.

In C.L.M. v. K.F.K., 2000 BCSC 701 (CanLII), the father's ex-spouse (common law) was seeking custody of the child after the break-down of the relationship, on the basis that the father was abusing the child. Davies J. granted joint guardianship of the child:

[1] This is a family law proceeding in which the parties are not married. The primary concerns are the custody of and access to the defendant K.F.K.’s 7-year-old son, A.M.K.. Those issues are out of the ordinary to the extent that the plaintiff, C.L.M., who lived with Mr. K.F.K. for less than three years now seeks sole custody of A.M.K.. She alleges physical and emotional abuse of A.M.K. by Mr. K.F.K.. There is also a counter-claim by Mr. K.F.K. in which he claims an interest in a house purchased by Ms. C.L.M. while they resided together.

[...]

[25] Although Mr. K.F.K. now disputes Ms. C.L.M.’s ability to parent A.M.K. and also the extent to which she was involved in his life as a caregiver, I find that she became very much involved in A.M.K.’s life and came to be looked upon by both Mr. K.F.K. and A.M.K. as a mother to A.M.K.. In that regard, it is significant that in December of 1998 Mr. K.F.K. prepared a codicil to his Will in which he appointed "my common law wife C.L.M. of Vernon, B.C. to be guardian of my infant son, A.M.K., during his minority”.

[...]

[56] Until recently Ms. C.L.M. would have had no status to seek an order for the custody of A.M.K.. In 1998, however, s. 35 and s. 24(1.1) of the Family Relations Act, R.S.B.C. 1996, c. 128 (the “Act”) were amended to allow the granting of custody and access rights to persons who are not relatives of a child.

[57] The considerations which are to govern the determination of the appropriate custody and access order for any child, are set forth in s. 24 of the Act. It provides:

24 (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’s needs and circumstances:

(a) the health and emotional well being of the child including any special needs for care and treatment;

(b) if appropriate, the views of the child;

(c) the love, affection and similar ties that exist between the child and other persons;

(d) education and training for the child;

(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise these rights and duties adequately.

(1.1) The references to “other persons” in subsection (1)(c) and to “each person” in subsection (1)(e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2).

[58] Mr. K.F.K. has submitted that the s. 24 considerations of the best interests of A.M.K. in this case must be addressed bearing in mind that he is A.M.K.’s natural parent. He submits that Ms. C.L.M. is not only not a relative of A.M.K. but is also motivated by improper considerations in her pursuit of custody. Mr. K.F.K. submits that Ms. C.L.M. has been motivated throughout only by a desire to harm Mr. K.F.K. because she is a “woman scorned”.

[59] It is well established that unless the best interests of the child require it, where the conflict over the custody of a child is between a parent and a non-parent, the welfare of the child will be best served by its natural parent. See: King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87 (S.C.C.); LeFranc v. Siepmann, [1999] B.C.D. Civ. 360.35.70.30-01 (Docket 10906, Terrace Registry)(B.C.S.C.); and J.R. v. D.W., [1992] B.C.J. No. 1610, Vancouver Registry No. A913221 (B.C.S.C.).

[...]

[81] The parties shall have joint guardianship in the terms defined by what is colloquially known as a “Joyce Order”.

In King v. Low, 1985 CanLII 59 (SCC), the Supreme Court of Canada adjudicated a contest over the custody of a child, born out of wedlock, between the appellant mother and the respondents with whom the mother placed the child for adoption a few days after its birth. The trial judge had decided that the adoptive parents have been caring for the child since the child's birth, and the welfare of the child would be served best if the child were to remain with the adoptive parents. The Supreme Court dismissed the appeal:

1. McIntyre J.‑‑This appeal involves a contest over the custody of a child, born out of wedlock, between the appellant mother and the respondents with whom the mother placed the child for adoption a few days after its birth. The Supreme Court of the Northwest Territories at trial, and the Court of Appeal of the Northwest Territories, have resolved the issue in favour of the adoptive parents. The mother's appeal to this Court is by leave granted September 27, 1983.

[...]

26. Section 39 of the Domestic Relations Ordinance provides that the rules of equity will apply in custody matters where they do not conflict with the provisions of the Ordinance. The application of equitable rules in this case would permit the Court to exercise the parens patriae jurisdiction and to treat the welfare of the child as the paramount consideration. I see no conflict in this respect with the Ordinance. Section 37, if it applied in this situation, would itself require a demonstration that the best interests of the child be served before it could be returned to the mother. The rules of equity, therefore, are to be applied in this determination.

27. This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.

28. In considering the facts of this case, it should be observed at once that the trial judge found that the adoptive parents, on the one hand, and the mother, on the other, were both capable of providing a satisfactory home for the child. This clearly is not a case where the choice is made easy by clear failure, on one side or the other, to measure up to the required standard. I have read the entire record and it is notable in this case that there is a total absence of the mutual recrimination usually found in such cases. Each party has accepted the proposition that the other can perform the parental duties well, but each seeks custody: the mother because of her love for the child she bore and from whom she has been separated, and the adoptive parents because they have come to look on the child as their own, as a member of their family to whom they have become attached as to their own children.

[...]

32. Much of the evidence given at trial had to do with the subject of bonding, that is, the creation of a tie between parent and child, essential to the child's development and of great significance even in the very early months of the infant's life. A welfare worker employed by the public health authorities prepared on the court's order a detailed report of the parties and the home of the respondents, and spoke of the observations made, expressing the view that the bonding process was well‑advanced before the trial when the child was only a few months old. A psychiatrist also gave evidence. He stressed the importance of bonding, described its nature, and made reference to reports submitted by the welfare worker and gave his opinion that the author had correctly defined the phenomenon and had observed reactions on the part of the child which were typical of the developing process. He also expressed the opinion that it would be harmful to the child to break the bond thus formed and to place the child in a home which would be strange and foreign and where the mother would be a stranger to him. The trial judge who heard the evidence said (at pp. 103‑04):

On the evidence before me, the child has by now established a strong bond instead with the adoptive parents, who are as a result in relation to the child as if they were its natural parents. This goes beyond the fact that they love and care for the child and have done so almost since the day of its birth. It goes to the very roots of the child's experience of its world since that time. It would be extremely traumatic for the child now to be uprooted from its present parental home and to be returned to a stranger to it, even if that stranger is its natural mother. Though lawful, such an uprooting would do serious and perhaps permanent psychological damage to the child, for it would be destructive of the truly close human bonds which it now has and would impair its prospects of functioning as a healthy human being as it grows older.

The law gives rights to the natural parents of a child in order that such very important and natural bonding may be protected and fostered, in the best interests of the child. The court recognizes those rights on that basis and for that purpose. But where, as in the present case, such bonding does not exist between the natural parent and child, having instead developed between the child and other parent figures, the court must perforce give recognition to the facts of the case accordingly. To do otherwise would be to substitute an empty formula for the substance which the law must embody and express.

On the facts of the present case, as the evidence plainly reveals, the child has been brought up by the adoptive parents almost since the day of its birth. The mother was able to see it and care for it during the five days they both stayed in the hospital, but (in spite of her growing misgivings) she gave up the child as a planned and deliberate choice. She later signed and delivered a formal consent to adoption of the child, in the usual written form, and she does not deny that she did so freely and knowing fully what she was doing. The adoptive parents were also with the child during its days in the hospital and they have had the child ever since, awaiting the day when the court would grant them its adoption. The adoptive parents have been the sole support of the child during the 7½ months of its life. These facts go a long way to establish the position of the adoptive parents in the present application, having reference to s. 35 and s. 37 of the Domestic Relations Ordinance, which are quoted above.

33. The majority of the Court of Appeal considered that there was evidence upon which a finding in favour of the adopting parents could properly be made and dismissed the mother's appeal. In this they were, in my opinion, right, and I would not disturb their disposition of the matter.

34. In my view, which I find supported in modern authority in this country and in the United Kingdom: see Re Moores and Feldstein; Beson; Racine; and J. v. C., [1970] A.C. 668 (H.L.), and particularly where the governing statute preserves and dictates the application of the rules of equity, the Court in questions of contested custody, including contests between a natural parent and adoptive parents, must consider the welfare of the child the predominant factor and give it effect in reaching its determination. This was done by the trial judge and the majority of the Court of Appeal. They reached, in my view, the right result, and I would dismiss the appeal. The respondents are entitled to their costs.

Alexsei publishing date:
76