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Old 08-01-2015, 01:52 PM
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The case that spelled it out based on BC's new DV definition(s):

From the Superior Court of British Columbia (“greater jurisdiction” to OCJ):

BC Case (Law):
CanLII - 2013 BCSC 885 (CanLII)

Portions from the cited link above (so you don’t have to read it all):


A. Legal principles

[172] The August 2011 hearing occurred when the FRA was in force. As of March 18, 2013, the new Family Law Act, S.B.C. 2011, c. 25 (“FLA”) has come into force and the FRA has been repealed. The parties’ claims are pleaded pursuant to the FRA and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“DA”). The DA remains in force. Where the provincial legislation applies, I have considered the FLA.

[173] The DA uses the terms “custody” and “access” when referring to children of the marriage. The FRA used terms “custody”, “guardianship” and “access”. The new FLA refers to “guardians” and “guardianship”, “parenting arrangements”, “parental responsibilities”, “parenting time” and “contact with a child”.

[174] The FLA is subordinate legislation to the DA. Nevertheless, FLA principles in some instances are interchangeable with those under the DA and in any case remain instructive.

[175] The test for guardianship and parenting arrangements for a child in our province has long been the child’s best interests: Robinson v. Filyk, 28 B.C.L.R. (3d) 21, 1996 CanLII 3310 (BC CA), 1996 CanLII 3310 (C.A.).

[176] The FLA now requires the Court to consider only the best interests of a child. This principle applies to all existing child custody questions.

[177] Section 37 of the FLA provides:

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.

[178] Subsections 16(8) - (10) of the DA set out three main factors that govern decisions on custody and access under the DA:

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[179] As per s. 40(4) of the FLA, no presumptions in favour of a parent predetermine the child’s best interests.
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