The Best Interests of Children: Negotiating in the Shadow of the Law

Originally published in the BC Distance Family Mediation blog

Today, it is my privilege to publish a post about what is undoubtedly the single most important consideration for separating parents — including when they are participating in family mediation. My thanks go to our highly esteemed distance mediation team member, Eugene Raponi, Q.C., for providing us with this informative, thoughtful post:

For separating parents, the most important issue that they have to resolve is the creation of an appropriate parenting plan for their children. Where should they start? Almost every parent will tell you that a parenting plan must be in the "best interests of the children". But what does that mean?

All too often, that phrase is used as a justification for a proposal. For example, I’ll hear one parent in mediation say that he wants the child to spend exactly 50% of the time with him because that's in the child's best interests. I usually ask: what's the magic of 50%? How does that serve the child's interests?

In other words, it's important for parents to understand how their proposal fits in with what's best for the child and not what's best for them.

It is said that the parties in a family law dispute negotiate in the shadow of the law: a negotiated agreement must be tested in the face of its alternatives. The ultimate alternative, of course – if no agreement is possible – is for the parties to proceed to court to see what a judge might have to say about their dispute. Judges will listen to the facts and apply the law. They do so impartially and with experience and wisdom. However, most judges will tell you that the people in the best position to make a decision about children are the people that love them most: their parents.

So, what does the law say about how to make decisions about children? In British Columbia, there is new legislation, the Family Law Act (the FLA), poised for implementation that provides a very helpful guide to parents trying to make the best parenting arrangements for their children. That legislation provides that the parties (and the court) must consider only the best interests of the child when determining guardianship, appropriate parenting arrangements or contact with a child (s. 37). Under the FLA,the following circumstances are to be considered:

  • the child's health and emotional well-being
  • the child's views (unless inappropriate to consider them)
  • the nature and strength of the relationships between the child and significant persons in the child's life
  • history of the child's care
  • the child's needs for stability
  • the ability of the parent (or guardian) to exercise his or her responsibilities as a parent
  • the impact of any family violence (including any civil or criminal proceeding relevant to the child's safety, security or well-being)
  • the ability of the parents to cooperate and communicate about the child


The legislation goes on to provide a shopping list of responsibilities – not rights– that parents may allocate between themselves in relation to their children. Those responsibilities include:

  • making day-to-day decisions
  • making decisions as to where the child will live and with whom the child will live and associate
  • making decisions about schooling, including extracurricular activities
  • making decisions about cultural, linguistic, religious and spiritual upbringing
  • consent to medical, dental and other health-related treatment
  • applying for passports, permits and so on
  • providing consent on behalf of the child, as required
  • receiving and responding to notices
  • requesting and receiving information about child from third-party health care and education providers
  • dealing with legal claims relating to a child


The point of all of the above is that the focus must remain on what is important for and to the children and not what is important for and to the parents.

So, let's go back to the example of a parent proposing a precise 50% sharing of a child's time. How does that address the interests of the child?

Well, experience and the psychological literature confirm that children should have as much meaningful contact as possible with each parent (the child’s emotional health and well-being, according to the factors set out above). In order to become a well-developed, functional adult, a child must have a full and meaningful relationship with each parent. So, the interest that is being addressed by the proposal is to create a parenting schedule that allows a child to have a full and meaningful relationship with that parent. But there is nothing in my experience or in the literature that says anything about it having to be 50% of the time. Usually, that kind of proposal has something to do with a need for equality between the parents (the parent's right, not the child's) or about influencing a child support claim (again, that’s an adult issue and not a child-focused one).

Mediation is about identifying interests and then fashioning an agreement that comes as close as possible to meeting those interests. When it comes to children, who are not usually part of the process, it’s especially important to consider whose interests are being advanced.

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