Courts 'not obliged to turn to biology' in determining who should be custodial parent: SCC

Courts have long struggled with the diversity of family structures, and the Supreme Court of Canada weighed in on Friday on the “natural parent presumption,” upholding a Prince Edward trial court decision. The ruling provided reasons why a grandparent was more suited to serve the interests her grandson rather than the boy’s biological father.

“A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer blood relative,” wrote Sheilah Martin, writing B.J.T v. J.D. on behalf of a unanimous nine-judge panel, in reasons for judgement released today regarding a case that was ruled on in December. The SCC ruling overturned a decision of the Prince Edward Island Court of Appeal.

Justice Martin also wrote that family institutions have “undergone a profound evolution” and changing social conditions, and that “contemporary shifts in parenting and family composition may undermine the relevance of biological ties.”

The SCC judge added that biological ties “may be relevant in a given case” they will generally carry minimal weight in the assessment.

“To assess the best interests of a child, courts apply a multi-factorial legal standard, although different statutes may articulate the individual factors in slightly different ways,” Justice Martin wrote. “It is a highly contextual and fact driven exercise that involves a high level of judicial discretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process."

Those factors include not only physical and economic well-being, but emotional, psychological, intellectual, and moral well-being. In the case of PEI law, they include:

• the safety of the child;
• the capacity of a parent to properly discharge parental obligations;
• the physical, mental and emotional needs of the child, and the appropriate care or treatment to meet those needs;
• the physical, mental and emotional level of development of the child;
• the views of the child, where appropriate;
• a secure place for the child and the development of a positive relationship as a member of a family;
• the love, affection and ties between the child and persons who have had custody of the child;
• the love, affection and ties between the child and other persons in the life of the child;
• the cultural, racial, linguistic and religious heritage of the child;
• if the child is aboriginal, the importance of preserving the cultural identity of the child;
• the capacity of persons other than a parent to exercise custody rights and duties respecting a child;
• the continuity of care for the child and the possible effect of disruption of that care on the child; and
• the difference in the concept of time, and the developmental capacity of a child.

Justice Martin wrote that in the relevant provincial legislation in this case, as in others, “no priority is given to one factor over the other.”

The question of which factors are relevant, and what weight should be apportioned to them, is a matter of judicial discretion regarding the evidence before the court, Justice Martin wrote. “The evidence that lays the foundation for the factors must first itself undergo a discretionary determination by the judge, regarding its admissibility, credibility, reliability, and weight."

Indeed, she added “an assessment of a child’s best interests can be conceptualized as requiring layered exercises of judicial discretion, in which the judge at first instance is in the best position to assess evidence pertaining to the best interests of the child.”

The case concerns a seven-year-old boy with autism. His parents, JD and A, were married in Calgary in May 2012 for approximately a year before A separated with JD and moved back to PEI.  However, unbeknownst to father, JD, A was pregnant with W at the time and gave birth to him in October 2013. Upon finalizing the divorce in 2014, A held sole custody of W until January of 2018.

However, A struggled with schizophrenia during this time. As her illness worsened, the Director of Child Protection stepped in and apprehended W, who was then placed in temporary care and custody of the child protection or for three months and then he was relocated and put under the care of his maternal grandmother, BJT. Ultimately, the grandmother BJT was legally recognized as a parent under the auspices of the Child Protection Act RSPEI 1988.

The case then went to the Prince Edward Court of Appeal in 2020, where a majority overturned the Supreme Court of PEI’s decision and awarded custody to the child’s father.

In December, the SCC revisited the decision and allowed the appeal from the bench, reversing the PECA’s finding. The grandmother was awarded custody by the SCC back in December, without reasons, in order to allow the boy to be placed in his permanent home as soon as possible. The SCC panel published reasons for its ruling Friday.

In this case, while both the biological father and the grandmother were “more or less” equally qualified to be the child’s parent, Justice Martin wrote that the “the decisive factor was which parent was more likely to foster W.D.’s relationship with the other parent.”

This factor clearly benefits the child, she wrote, “as it ensures the child is placed with the parent who will best promote the child’s emotional and psychological relationship with the other parent.” As well, any benefit from a connection to the biological parent, such as a sense of security in knowing one’s roots may be achieved through access and parenting time rather than custody.

Justice Martin wrote that she agreed with the majority of the PEI appeal court that a court may consider biological ties in assessing a child’s best interests “if they have some link to the child’s best interests.”

However, the majority “overstated the importance of a biological tie in itself when it concluded it was an ‘important, unique and special’ factor that must be a tiebreaker when two prospective custodial parents are otherwise equal."

She also disagreed with the appeal court majority that biology has “any relevance in a case like the one at bar, where both legal parents have biological ties and nothing in the record establishes that one type of tie is better than the other.”

Too great an emphasis on biological ties may lead some decision-makers to give effect to the parent’s claims over the child’s best interests. As well, a child’s bond is a consideration that should prevail over the “empty formula” of a biological tie.

Justice Martin wrote: “A child will frequently have a strong attachment to a biological parent as they are generally among the persons most involved in the child’s care. Yet this does not confer significant weight to a biological tie in itself. It is the biological parent’s caregiving role that fosters a child’s psychological and emotional attachment, not the biological tie itself.”

The LGBT Family Coalition, which was an intervenor in the case, presented a perspective on why the biological parent factor should not be given as much weight as has traditionally been done.

The group, represented by IMK Law in Montreal, argued that in most LGBTQ+ families, children will not be biologically related to all of their parents and that including biology as a factor in determining custody could hurt the non-biological parent in the relationship. As a result, by placing emphasis on the biological factor, courts could inadvertently discriminate against non-biological parents. 

In a statement in an email from IMK lawyer Laura Cárdenas, the coalition said that the SCC, in its reasons Friday, "clarifies that the importance of biological ties stems from our historical presumption that they are a proxy for a bond between parent and child."

It adds that Justice Martin "also refers specifically to '[c]ontemporary shifts in parenting and family composition' and the fact that there is a growing number of families in which biological ties do not define a child's family relationships." 

"All of this further undermines the relevance of biological ties, which is precisely what the LGBT+ Family Coalition advocated in its intervention."

It is common in LGBTQ+ families for some, but not all parents, to have a biological tie with their children, the coalition says in its statements. "LGTBQ+ parents who are not biologically related to their children were historically prevented from having that parental relationship recognized legally. Even now, they often have to jump through hoops to have their legal relationship with their children given the same standing and weigh as that automatically granted biological parents."

The coalition adds: "Thankfully, the decision of the Supreme Court in B.J.T. makes it clear that if LGBTQ+ parents eventually dispute the custody of their children, their children's best interest is what will be determinative in the custody dispute - not the fact of a biological tie."

BJT was represented by Cox and Palmer Law, and JD was represented by Stewart McKelvey LLP.