Section 37 of the Family Law Act, SBC 2011, c 25 codifies the principle that the only consideration in determining the appropriate parenting arrangements pertaining to a child is what is in that child’s best interests. This section has garnered significant respect and support as it puts the child’s interests before that of either of the parents. While the application of section 37 in considering orders for parenting arrangements is clear, what was not clear until recently was whether section 37 applied to circumstances outside of that realm.

In a recent decision by the British Columbia Court of Appeal (“BCCA”), the BCCA considered the application of section 37 of the Family Law Act, SBC 2011, c 25 in the context of a child making decisions in accordance with section 17 of the Infants Act, RSBC 1996, c 223. In particular, the BCCA considered whether a court can make bald declarations regarding a child’s best interests pursuant to section 37 of the Family Law Act in a context where orders regarding parenting arrangements are not being sought.

In A.B. v. C.D., 2020 BCCA 11, the BCCA considered matters surrounding a child’s gender identity and the validity of the child’s consent to undergo medical treatment for gender dysphoria. While the BCCA was faced with a variety of issues on appeal, an interesting discussion surrounded the application of section 37 of the Family Law Act where orders are not being sought in accordance with Part 4 of the Family Law Act. At the conclusion of the trial, the trial judge made the following “bald” declarations pursuant to section 37 of the Family Law Act:

1. The child receive the medical treatment for gender dysphoria recommended by the Gender Clinic at BCCH;
2. The child be acknowledged and referred to as male, both generally and with respect to any matters arising in these proceedings, now or in the future, and any references to him in relation to this proceeding, now or in the future, employ only male pronouns;
3. The child be identified, both generally and in these proceedings, by the name he has currently chosen, notwithstanding that his birth certificate presently identifies him under a different name.

The BCCA termed the foregoing declarations “bald” declarations to indicate that they are declarations not otherwise coupled with a substantive order in relation to the care of the child. Despite the apparent good intentions of the trial judge, the BCCA held that while the best interest of the child is undoubtedly the paramount consideration animating Part 4 of the Family Law Act, its application is limited to those matters respecting guardianship, parenting arrangements or contact with a child. Rather, when dealing with health care decisions that trigger the application of section 17 of the Infants Act, what is in a child’s best interests is within the purview, at least initially, of the child’s health care provider. To this end, the Court at paragraph 119 states:

In our view, s. 37 deals only with considerations to be taken into account in “the making of an agreement or order… respecting guardianship, parenting arrangements or contact with the child.” The provision does not contemplate freestanding judicial declarations as to the “best interests of the child” that are unconnected with agreements or orders respecting guardianship, parenting arrangements, or contact in particular, where a child has consented to health care in accordance with s. 17 of the Infants Act, s. 37 of the Family Law Act does not furnish a court with authority to enter upon a de novo consideration of the child’s best interests in respect of medical treatment.

The foregoing comments by the BCCA are a welcomed reminder as to the limited applicability of section 37 of the Family Law Act. While it is attractive to turn to section 37 of the Family Law Act for all matters involving a child, one must be mindful of the binding legal tests present when the application of other legislation is triggered.