Supreme Court rules biology not a tiebreaker in child custody dispute

Being a biological parent is not a tiebreaker in a custody dispute, the Supreme Court of Canada said Friday.Sean Kilpatrick/The Canadian Press

Being a biological parent is not a tiebreaker in a custody dispute, the Supreme Court of Canada said Friday when explaining why it awarded full custody of a young child to his maternal grandmother instead of his father.

A lower court judge found that the father, who lives in Alberta, and the grandmother, who lives in Prince Edward Island, were good, secure and loving parents with whom the boy, who is now eight years old, had strong ties. The tiebreaker for this judge, Prince Edward Island Supreme Court Justice Nancy Key, was that the grandmother would foster the boy’s relationship with his father, including supporting trips to West to keep the boy with him. The father, on the other hand, was reluctant to encourage a relationship with the grandmother unless the court ordered it.

Judge Key awarded custody to the maternal grandmother, but the Prince Edward Island Court of Appeal reversed his decision and instead awarded custody to the father. In a 2-1 decision, the appeals court said “the natural parent factor should be decisive” when the other factors are more or less equal, or even when the non-parent’s case is slightly better.

The Supreme Court of Canada released its 9-0 decision in December, shortly after a hearing. In his written reasons for the decision, released on Friday, he suggested the appeals court’s tiebreaker approach was anachronistic. “A court need not look to biology and engage in a difficult determination of who may be a closer blood relative,” Judge Sheilah Martin wrote.

That hasn’t always been the case, she said in the ruling. In the 1950s, the Supreme Court established a presumption in favor of biological parents over adoptive parents. Then, in 1985, the court convicted a biological mother who had given her child to adoptive parents and then demanded the return of the child. The court then said that the welfare of the child came first. It was not the biology per se that mattered, but the emotional or psychological bond between parent and child. The biological link itself was an “empty formula”, the court said. A 1993 decision said “there is no magic in the parental bond”.

“While the biological links may relevant in a given case, they will generally carry little weight in assessing a child’s best interests,” Justice Martin wrote on Friday. She cited PEI’s child protection laws. and other provinces, as well as federal divorce law, none of which mentions biology as a factor determining the best interests of the child.

Friday’s decision stands in stark contrast to child custody decisions in the United States.

“American law treats birth parents as rights holders, if I can put it that way, in matters involving parenthood, children, adoption, etc.,” said law professor emeritus Rollie Thompson, from the Schulich School of Law at Dalhousie University, in an interview. “Whereas in Canada, we tend to start from the child’s point of view: who acts as the parent? We could call this a functional model, as opposed to a rights-bearing model.

The bottom line: “We don’t give the natural-parent bond the weight it has in the United States.”

Yet, as the court case illustrates, custody cases don’t always work out that way in practice.

The history of the conflict is complex. The mother and father married in 2012 and lived together in Calgary. The relationship ended amid disputed allegations that the father was abusive towards the mother. They divorced in 2014 and the mother moved to Prince Edward Island. She was pregnant and didn’t tell the father.

Over the next few years, the mother retired due to mental illness and Children’s Aid became involved. The grandmother came from Alberta to help, but returned to Alberta for a while. When the child was five years old, Children’s Aid informed the father that he had a son. Eventually, he filed for custody, as did the grandmother, who by then was back in Prince Edward Island. The PEI Director of Child Protection. sided with the father and placed the child in his care.

Justice Key, the lower court judge, found that the director of child protection failed to consider the possibility that the grandmother was the child’s guardian. The appeals court said Judge Key’s criticism of the director of child protection was irrelevant and blinded her to the best interests of the child, in particular the preference that should be given to the biological parent.

The Supreme Court of Canada disagreed, saying judges are obligated to consider how the conduct of child welfare agencies may have shaped, or even defined, the facts of a case.

Ryan Moss, a lawyer for the grandmother, said in an interview that his client persisted in a lengthy legal process and won because she was willing to put the animosity behind her. “She may be a grandmother and 67, but she’s feisty,” he said, adding that she’s gotten back up several times after being knocked down by the justice system.

The father’s attorney could not be reached for comment.

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