Being a biological parent is not a tiebreaker in a custody battle, Canada’s Supreme Court said Friday.Sean Kilpatrick/The Canadian Press
Being a biological parent is not a tiebreaker in a custody battle, the Supreme Court of Canada said on Friday, explaining why it had awarded full custody of a young child to his maternal grandmother instead of his father.
A lower court judge had found that both the father, who lives in Alberta, and the grandmother, who lives on Prince Edward Island, were good, secure and loving parents with whom the now eight-year-old boy had a strong bond. The key point for that judge, PEI Supreme Court Justice Nancy Key, was that the grandmother would encourage the boy’s relationship with his father, including by sponsoring trips west to have the boy stay with him can. The father, on the other hand, was reluctant to encourage a relationship with the grandmother unless ordered by the court.
Justice Key gave custody to the maternal grandmother, but the PEI Court of Appeals overruled her, giving custody to the father instead. In a 2-1 ruling, the Court of Appeal said that “the natural parent factor should prevail” when other factors are more or less the same, or even when the case is slightly better for the non-parent.
Canada’s Supreme Court returned its 9-0 verdict in December, shortly after a hearing. In its written justification for that decision, released Friday, it suggested that the appeals court’s tiebreaker approach was anachronistic. “A court has no obligation to turn to biology and make a difficult decision about who might be a closer blood relative,” Justice Sheilah Martin wrote.
That was not always the case, she said in the verdict. In the 1950s, the Supreme Court established a presumption in favor of biological parents over adoptive parents. Then, in 1985, the court ruled against a biological mother who had given her child to adoptive parents and then ordered the child’s return. The court said at the time that the best interests of the child came first. It wasn’t the biology per se that mattered, but the emotional or psychological bond between parent and child. According to the court, the biological bond itself is an “empty formula”. A 1993 ruling said that “there’s no magic in the parental bond.”
“Although biological ties may be relevant in a particular case, they generally carry minimal weight in assessing the best interests of the child,” Judge Martin wrote on Friday. She cited child protection laws in PEI and other provinces, as well as the federal divorce law, neither of which mention biology as a factor in determining a child’s best interests.
Friday’s decision stands in stark contrast to custody decisions in the United States.
“US law sees birth parents as rights holders, if I may put it that way, in cases involving parenthood, children, adoption and the like,” said law professor emeritus Rollie Thompson of Dalhousie’s Schulich School of Law University in an interview. “Whereas in Canada we tend to take the child’s perspective: who acts as the parent? We could call that a functional model as opposed to a rights-bearing model.”
The result: “We don’t give the bond between birth parents nearly the weight it is given in the United States.”
However, as the case before the court shows, custody cases do not always work out that way in practice.
The history of the dispute is complex. The mother and father were married in 2012 and lived together in Calgary. The relationship ended amid controversial allegations that the father had been violent towards the mother. They divorced in 2014 and the mother moved to PEI. She was pregnant and did not tell her father.
In the next few years, the mother withdrew because of a mental illness and the children’s aid got involved. The grandmother came from Alberta to help but returned to Alberta for a time. When the child was five years old, Kinderhilfe informed the father that he had a son. Eventually, he applied for custody, as did the grandmother, who was back in PEI at the time. The child protection director of the PEI sided with the father and handed the child over to him.
Justice Key, the lower court judge, found that the child protection director had not considered the grandmother’s possibility as the child’s guardian. The appeals court said Justice Key’s criticism of the child protection director was irrelevant and blinded her to the best interests of the child, particularly the preference that should be accorded to the biological parent.
Canada’s Supreme Court disagreed, saying judges have a duty to consider how behavior by child protection agencies may have shaped or even defined the facts of a case.
Ryan Moss, an attorney for the grandmother, said in an interview that his client endured a lengthy court case and won because she was willing to put her animosity behind her. “She may be a grandmother and she’s going to be 67, but she’s fiery,” he said, adding that she’s picked herself up many times after being crushed by the justice system.
The father’s attorney could not be reached for comment.
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