Legal Test of “Best Interests of the Child” is the Only Consideration

When parents or judges make decisions about parenting – including decisions about guardianship, parental responsibilities, and contact with a child – BC family law is clear that the best interests of the child are the only consideration. Under BC family law, an agreement or order is in the best interests of the child if it protects the child’s physical, psychological, and emotional safety, security, and well-being.

I have previously discussed the application the “best interests of the child” test in the context of grandparent access, international child custody matters, and resolving parenting conflicts with the assistance of a parenting coordinator. The legal test of the “best interests of the child” also applies to adoption matters and was recently applied when determining whether to grant an adoption order allowing a parent to adopt her own child.

Best interests of the child and adoption

In Re: C.J.C.B., 2016 NBCA 4 a single mother (“R.C.”) applied to the court seeking to adopt her own biological child to the exclusion of the other biological parent. The child was born in September 2014 following a brief courtship with the child’s biological father. R.C. sought to adopt the child in her name alone, as the biological father’s name was not on the birth certificate, he never developed a parental bond with the child, did not wish to do so, and agreed to the child’s adoption by R.C. The main argument in support of R.C.’s application to adopt her biological child in her name alone was based her contention that the child’s sense of continuity needed to be ensured, and that adoption was the only way to guarantee such continuity free from the risk of disruption by the father if the father subsequently attempted to get involved in the child’s life. The trial judge refused to make the order and R.C. appealed that decision.

Best interests of the child are the only consideration

The Court of Appeal upheld the trial judge’s refusal to grant the adoption order. In so doing, the appeal court agreed that there may indeed be particular circumstances where it is in the best interests of the child to make an adoption order allowing a parent to adopt his or her own child to the exclusion of the other biological parent. However, the issuance of such an order could have significant negative effect on the rights of the child, which must be weighed in determining whether an adoption order is in the child’s best interests:

[12]        However, in general, courts must keep in mind that by issuing such an order, they could cause the child to lose certain rights such as half of his or her legal family, inheritance rights with respect to his or her father or mother, the right to a possible support allowance, as well as any other right arising from a father or mother’s obligations.

The appeal court was of the opinion that R.C. did not establish circumstances which would warrant the adoption order. The evidence was clear that the child has a stable life, thanks to R.C., and there was nothing to indicate that the child’s sense of continuity was threatened. It was purely speculative to say that the father’s eventual return into the child’s life would pose a risk to the child’s sense of continuity. The best interests of the child must be determined on the basis of the evidence rather than on speculation. The court also noted that if a threat to the best interests of the child did materialize in the future, the court could intervene at that point to put an end to such a danger.

Take home point on “best interests of the child”

The best interests of the child are the only consideration when it comes to decisions about parenting. A parent’s interests or concerns, however sincere and pressing, are second to those of the child and a decision in the best interests of the child must be based on the facts rather than speculation. In some circumstances, it may be in the best interest of the child for a parent to be permitted to adopt his or her own biological child, to the exclusion of the other parent. However, courts must weigh the fact that by issuing such an order, they could cause the child to lose certain rights such as half of his or her legal family, inheritance rights with respect to the other parent, the right to a possible support allowance from the other parent, as well as any other right arising from the other parent’s obligations.