Organic ties ought to have “minimal weight” in youngster custody, Supreme Courtroom dominated

Biology is one of many factors to consider in child custody cases, and not an important one, the Supreme Court of Canada said in written comments released Friday concerning a PEI case it ruled in December.

The court overturned a PEI Court of Appeals decision, awarding custody to a boy’s grandmother rather than his father, who was unaware of the child’s birth until a PEI official told him in 2019.

“While it is not an error for a court to consider a biological link per se in the assessment of a child’s best interests, in general a biological link should carry minimal weight in the assessment,” Justice Sheilah Martin wrote on behalf of a unanimous panel of nine judges of the Supreme Court of Canada.

“A parent’s mere biological bond is but one factor among many that may be relevant to a child’s best interests…Judges are not required to treat biology as a tie-breaker when two potential custodial parents are otherwise the same.”

The verdict says the roots of the case go back to 2018, when a then four-year-old boy was arrested by the director of child protection services on Prince Edward Island.

The child’s parents married in Alberta in 2012 but separated after less than a year. His mother then moved to PEI without telling his father that she was pregnant. The woman’s mother also moved to the island to help her daughter look after the boy, providing both day-to-day care and financial help.

child protection services involved

However, the mother suffered from mental health problems. In August 2017, she denied her mother any further contact with the child.

The boy was placed in the care of provincial child protection officers a few months later, and the grandmother was approved as a foster parent. She was later granted legal status as the boy’s ‘parent’.

In early 2019, the PEI Child Protection Service contacted the Alberta father and informed him that he had a child by his ex-wife. The man said he wanted the boy to live with him and began preparing for parenthood. As of June 2019, he was allowed to visit the child on PEI regularly, both supervised and unsupervised.

Although the grandmother wanted to seek permanent custody of the boy, the head of PEI’s child protection service sent him to visit his father in Alberta and then decided to continue the visit indefinitely.

His maternal grandmother was allowed to visit the boy there, but only for a limited time.

Relationship to both sides key

A PEI judge granted permanent custody to the grandmother rather than the father after weighing all the evidence presented and finding that the claims of both parties were more or less equal. With that in mind, the judge said, what matters is which person is more likely to foster a relationship between the boy and the other side of his family.

The grandmother was willing to allow visits and regular contact; The father said he would only do so if a court ordered it.

The PEI Court of Appeals later overturned that decision, saying the first judge erred in not giving preference to the birth father. Only the chief judge of the province disagreed with this decision.

It is the nurturing role of the biological parent that fosters a child’s psychological and emotional bonding, not the biological bonding itself.– Judge of the Supreme Court of Canada Sheilah Martin

The case then went to the Supreme Court of Canada, which unanimously agreed with the judge at the original hearing.

“I agree with the majority [PEI] Court of Appeals that a court may take biological ties into account when assessing the child’s best interests if they have a connection to the child’s best interests,” Judge Martin wrote in the ruling.

“However, the majority overstated the importance of a biological bond per se, concluding that it is an ‘important, unique and special’ factor that must be a deciding factor when two potential custodial parents are otherwise the same …

“It is the nurturing role of the biological parent that fosters a child’s psychological and emotional bonding, not the biological bonding itself.”