Child’s welfare, not biology, comes first in custody considerations

By Tony Poland, LegalMatters Staff • What is in the best interest of the child is more important than biology when it comes to determining custody, says Toronto family lawyer A. Julia P. Tremain.

Tremain, a partner with Waddell Phillips Professional Corporation, cites the recent Supreme Court of Canada (SCC) case B.J.T v. J.D. that awarded custody of an eight-year-old child to his grandmother, rather than his father, as proof that a parent’s biological tie is simply one factor among many that may be relevant to a child’s best interest.

“It is not the overriding factor but one of many to consider. The Court is saying that biology is not the tiebreaker in a custody case. It is not the only thing that you look at above everything else,” she tells LegalMattersCanada.ca. “It is not just about parental rights. It is about how to best serve the child’s welfare. There’s an enumerated list of those interests that include love and affection and ties to your family. 

‘Court did not say that biological ties are unimportant’

“This is an interesting case because some will make the assumption that parents are being minimalized, or a father’s rights are being ignored. But the Supreme Court was very careful in enunciating its decision. The Court did not say that biological ties are unimportant. They just said that they are not the tiebreaker. It is the bigger picture that you must consider,” Tremain adds.

The SCC ruling involved the custody battle between the father and grandmother of a Prince Edward Island boy. Court heard his parents were married in Alberta in 2012 but separated less than a year later. The mother moved to P.E.I. and the father was unaware she was pregnant when she left.

Shortly after the boy was born in October 2013, his maternal grandmother moved to P.E.I. to help care for him, court was told. The mother suffered from significant mental health challenges and the boy was later apprehended by the Director of Child Protection and eventually placed in the grandmother’s care in a foster parenting agreement. The Director contacted the father about the child’s existence and the father and grandmother applied for permanent custody with the grandmother granted custody.

Appeal court overturned decision

The P.E.I. Court of Appeal overturned that decision and awarded custody to the father.

However, the SCC ruled that an appeal court can only change a ruling when there is a material error, a serious misapprehension of the evidence or if there is an error in law.

“The hearing judge’s determination of the child’s best interests was grounded in a thorough assessment of the extensive evidence in the proceedings. In light of the evidentiary record, the hearing judge conducted an assessment that disclosed no material error, serious misapprehension of the evidence, or legal error,” Justice Sheilah Martin writes in the unanimous Supreme Court decision.

Tremain, who was not involved in the case but comments generally, says she wasn’t surprised the appeal court decision was overturned.

“Typically, an appeal court really does have to defer to the trial court, especially when it comes to evidence,” she says. “The trial court judge is the one who observes the witnesses and makes decisions on their credibility. The appeal court generally cannot change a decision unless the trial judge gets the law wrong. “

“In this case, the appeal court said on this same information they would have decided differently, which is not giving deference to the trial judge,” Tremain adds. “There was no way to support their decision.”

Concerns with child protection agency

She says she also had concerns about the Director of Child Protection’s role in the case. According to the ruling, after informing the father of the existence of the child, the Director then arranged a visit to Alberta for the boy. The Director subsequently ended the foster parenting arrangement with the grandmother, removing the child from her care and placing him with foster parents. The Director later sent the child to Alberta for a second visit with the father and decided to make the visit indefinite.

• Keep safety in mind when leaving an abusive relationship
• Who gets the pet can make for a contentious divorce
• Be careful when splitting with spouse with mental health issues

“Whenever you have a child welfare case, the society cannot just make decisions about the child,” Tremain explained. “There is a reason why there is oversight by the court. It is the court that makes the decisions about where the child can live. 

“So, for example in Ontario, if the society wants to place a child with extended family, maybe it is an uncle or a grandparent, they will do what is called an extended vacation. But they have to bring it back to court very quickly to actually get a temporary custody order,” she says. “A judge has to support that placement but, in this case, the society sends the child on a visit to Alberta twice. Then they decided the boy can stay with his father but they did not bring it back to court to get permission. The Supreme Court certainly commented on the importance of judicial oversight in child welfare matters in this case.” 

A child’s best interest is paramount

In the end, the child’s best interests will be the foremost in a court’s decision in a custody case.

“There are many factors. No one factor outweighs any other and some will not apply in certain situations,” Tremain notes.

For instance, a judge may consider a child’s wish to live with their mother or father, she says.

“For a two-year-old, that factor is not going to apply but for a teenager, that may be a consideration,” Tremain says. “Again, it is up to the trial judge to decide how much weight to give each of the different factors and what to consider because they are the ones who have all the information before them.” 

More from Waddell Phillips Professional Corporation:

Class action is a powerful weapon in human rights violations battle