Supreme Court of Canada considers the significance of biological ties of parenthood in assessing the best interests of the child
June 9, 2022
BY Kevin Zakreski
In a decision released late last week, the Supreme Court of Canada commented on the diminishing significance of biological ties of parenthood in determining who a child’s guardian should be.
This appeal concerns a custody dispute over a child who was apprehended at the age of four by the Director of Child Protection in Prince Edward Island (“Director”). At the disposition hearing under s. 37 of the Child Protection Act, R.S.P.E.I. 1988, c. C-5.1, which occurred when the child was six, both his father in Alberta and his maternal grandmother in Prince Edward Island sought permanent custody. The hearing judge concluded that it was in the boy’s best interests to be placed with his grandmother, who had cared for him extensively throughout his life. A majority of the Court of Appeal reversed this decision and granted custody to the father, who had only learned he had a child when the boy was five years old and had only recently begun to have a relationship with him. [footnote omitted]
The Supreme Court of Canada allowed the appeal, reversing the court of appeal and affirming the decision of the trial judge.
Much of the court’s decision was concerned with emphasizing the deference that appellate courts should show to a trial court’s determination of a child’s best interests, which is “the guiding principle in most custody matters,” including this case. The court repeatedly pointed out that this determination is “inherently an exercise of discretion.” (Elsewhere, the court said that “an assessment of a child’s best interests can be conceptualized as requiring layered exercises of judicial discretion” and emphasized “the polymorphous, fact-based, and highly discretionary nature of such determinations.”)
“To assess the best interests of a child,” the court noted, “courts apply a multi-factorial legal standard, although different statutes may articulate the individual factors in slightly different ways. 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.” One factor in this analysis occupied a fair bit of the court’s attention.
This factor is the biological tie of parenthood. As the court observed, “a parent’s mere biological tie is simply one factor among many that may be relevant in some cases to a child’s best interests, which is and must be the paramount consideration.”
In Canada, the court noted a long-term trend to diminish the significance of this biological tie, as “[c]ourts have gradually moved away from an emphasis on parental rights and biological ties in settling custody matters, whether arising from a private dispute, an adoption, or the state’s apprehension of children in need of protection.”
In the court’s view, the court of appeal had bucked this trend and had “overstated the importance of a biological tie in itself when it concluded it was an ‘important, unique and special’ factor that must be a tie-breaker when two prospective custodial parents are otherwise equal (paras. 111–13).” Instead, the court emphasized that “[j]udges are not obliged to treat biology as a tie-breaker when two prospective custodial parents are otherwise equal.”
While this case concerned guardianship in the context of child-protection proceedings, some of the court’s comments acknowledged a broader evolution away from emphasizing biological parentage, which may be relevant in other areas of family law, such as parentage:
As well, the importance of biological ties may diminish as children are increasingly raised in families where those ties do not define a child’s family relationships. Family institutions have “undergone a profound evolution” and changing social conditions, as noted, have diminished the significance of biological ties (Young, at p. 43; King v. Low, at p. 97). Change and evolution continues today. Contemporary shifts in parenting and family composition may undermine the relevance of biological ties.