Family Law

Biological Ties Not Determinative of Best Interests of the Child

September 30, 2022

A woman kissing the head of a baby, representing natural parents and a child's best interests in a custody dispute

Decision-making responsibility (custody) and parenting time (access) are some of the most contentious issues in family law cases. In some situations, an individual who is not a child’s biological parent may seek an order granting them parenting time with the child.

Historically, Canadian courts have supported what is known as the “natural parent presumption”. This presumption assumes a biological parent should have access to a child whenever possible, even if a non-parent may be more appropriate. However, in June of this year, the Supreme Court of Canada released a decision stating that biological ties carry no more weight than any other consideration when determining what is in a child’s best interests.

Child Protection Services took custody of child due to mother’s mental health struggles

In B.J.T. v. J.D., the parents were married in Alberta in 2012. Following an alleged domestic violence incident, the mother left the father and moved to Prince Edward Island. Unbeknownst to the father, the mother was pregnant with the child at issue in these proceedings when she moved.

Following the birth, the mother experienced mental health challenges which interfered with her ability to care for the child. The child’s maternal grandmother came to live with the mother to care for the child shortly after she was born. The grandmother stayed for two years, left for one year, and returned in the spring of 2017. Unfortunately, the mother’s condition worsened, and the relationship between the mother and grandmother fell apart. The mother did not allow the grandmother to care for the child, and the Director of Child Protection in Prince Edward Island (“the Director”) took temporary custody of the child. 

Father moved back to Alberta with child as grandmother named “parent” under law

The Director entered into a foster parenting agreement with the grandmother, who became responsible for the child’s daily care. In February 2019, the father was contacted by the Director. This was the first time the father was made aware that he had a child. He immediately indicated that he wanted the child to live with him in Alberta and flew to meet the child in June of that year. However, as the father visited the child, the maternal grandmother informed the Director of the father’s history of family violence with the child’s mother. 

The grandmother successfully applied to be named a “parent” of the child under P.E.I.’s Child Protection Act. However, with the Director’s support, the father took the child into his custody and moved back to Alberta.

Parties brought competing custody applications; Court of Appeal emphasized father’s status as a “natural parent”

Following the father’s move back to Alberta with the child, the parties had a child protection hearing in Prince Edward Island. At the hearing, it was determined that the child’s best interests would be served by allowing the child to live with the grandmother. The grandmother said she was willing to promote a healthy relationship between the father and the child. However, the father would not promise the same unless ordered to do so by the Court.

The judge commented that the Director seemed intent on supporting the father in becoming the child’s legal guardian without offering the same consideration to the grandmother. 

The father successfully appealed the judge’s decision. The Court of Appeal for Prince Edward Island stated that the hearing judge failed to give proper weight to the father’s status as the child’s natural parent. The matter was appealed to the Supreme Court of Canada.

Court of Appeal failed to give deference to hearing judge’s decision

In Canada, the child’s best interests are the paramount principle for consideration in decision-making responsibility (custody). Family and child protection laws across the country set out numerous factors for determining what is in a child’s best interests, with judges exercising discretion over the importance placed on any single factor.

The Supreme Court of Canada noted that it could only interfere with a judge’s custody order if there were a material error, serious misapprehension of the evidence, or an error in law. It explained that an appellate court is not permitted to replace a lower court’s decision simply because the appellate court prefers a different result. 

In this case, the Supreme Court found that the Court of Appeal failed to give deference to the hearing judge’s decision that the grandmother was the most appropriate parent and guardian for the child. Although the Court of Appeal preferred the father to take custody of the child, it cited no material error, misapprehension of evidence, or legal error on the part of the hearing judge.

Biology is not a “tie-breaker” between prospective custodial parents

The Supreme Court noted that the hearing judge was allowed to look at the status quo, how it was created, and its resulting impact on the child’s best interests. The Court found that it was open to the hearing judge to consider the different treatment of the father and grandmother by the Director of Child Protection. Further, the hearing judge was entitled to consider how the Director’s unbalanced facilitation of access to the father and grandmother would have impacted their bond with the child.

Although courts can consider biological ties when evaluating a child’s best interests, the Supreme Court held that these should carry minimal weight in the assessment. The Court wrote:

“… a parent’s mere biological tie is simply one factor among many that may be relevant in some cases to a child’s best interests, which is and must be the paramount consideration. Judges are not obligated to treat biology as a tie-breaker when two prospective custodial parents are otherwise equal.”

As a result, the Supreme Court set aside the Court of Appeal’s decision. It affirmed the decision of the hearing judge to award permanent custody and guardianship to the grandmother pursuant to the Child Protection Act of P.E.I. The child was ordered to be returned to P.E.I. at the expense of the Director of Child Protection.

DBB Law: Providing Leading Family Law Services in Calgary

DBB Law has one of the largest and most recognized family law practices in Western Canada. Our team includes several award-winning family lawyers and has a reputation for skill, experience, and success when representing clients in family disputes. We provide innovative, pragmatic legal solutions to clients across all types of family and divorce matters, including decision-making responsibility (custody) and parenting time (access) issues.

Conveniently located in the heart of downtown Calgary, DBB Law has proudly served Albertans for over 35 years. To schedule a consultation with a member of our team, contact us online or call 403-265-7777.

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