Court Cases & Orders

Supreme Court of Canada Says Biological Ties are Not a “Tiebreaker” Factor in Custody Disputes

biological dna
Written by Russell Alexander / (905) 655-6335

Supreme Court of Canada Says Biological Ties are Not a “Tiebreaker” Factor in Custody Disputes

In an important child custody ruling last week, the Supreme Court of Canada rejected what it called the “natural parent presumption”, i.e. that when it comes to being granted legal custody, a parent’s biological tie to a child will trump a non-parent’s eligibility – even if that non-parent is better suited to promoting the child’s best interests.

The facts involve a custody dispute not between a child’s parents, but rather between the maternal grandmother and the biological father. The child’s mother had struggled with schizophrenia, and at one point the child had been apprehended by the P.E.I. Child Protection services and placed in temporary care. At that point the grandmother – who had provided financial support and daily care since the child was an infant – managed to obtain a court order legally recognizing her as a parent under provincial child protection law.

All of this was over the objections of the father, who had only newly learned about the now 7-year-old child’s existence. He had left the province 8 years earlier after a physical altercation with the mother, unaware that she was even pregnant at that time. The father now stepped forward to challenge the grandmother’s custody order, and managed to persuade the Court of Appeal to switch permanent custody to him.

The grandmother appealed to Supreme Court of Canada – and she won, by unanimous ruling by all nine members.

That Court confirmed the initial decision that the grandmother was better-suited to foster the best interests of the child, in preference to the child’s own biological father. In doing so, the Court took a close look at the role that biological ties can have, when a court makes assessments around the child’s best interests and the allocation of custody/access rights.

The Supreme Court started by noting that Canadian family institutions have “undergone a profound evolution”, which can undermine or dilute the relevance of the biological ties between a parent and a child. Having a biological connection is no guarantee against harm to a child; conversely a child can be equally attached to people who are not biological parents, and who are still capable of meeting the child’s needs.

Although biological ties remain relevant to assessing the child’s best interests, they must carry only minimal weight in the courts’ assessment. Their importance should not be overstated, nor should they be viewed as a “tiebreaker” factor when two prospective custodial parents are otherwise equal.

In other words, biological ties are merely one of many factors for Family Courts to consider. A child’s best interests must still be assessed using a “multi-factorial legal standard”, the details of which can vary by province/territory, depending on the wording of the particular Family legislation that governs. This is a highly-contextual, fact-driven exercise, decided on a case-by-case basis after looking at the child’s unique circumstances.

Under the P.E.I. law that applied to the case, the long list of factors included the child’s safety, physical, mental and emotional needs, intellectual and moral development and wellbeing, and his or her views where appropriate. It also required a look at the parent’s own capacity to properly discharge his or her parental obligations, and the love, affection and ties between them.

None of these factors are in priority to the others, the Supreme Court added. Instead, their weight and relevance – as well as that of any evidence tendered – will be apportioned through judicial discretion. The entire process requires “layered exercises of judicial discretion”.

When all those factors were considered here, the Supreme Court confirmed the original judge’s conclusions: The grandmother and father were equally qualified as parent-type caregivers, but were not equal in their willingness to maintain and strengthen the child’s broader relationships. Only the grandmother was prepared to promote the child’s relationship with the father and his family; conversely the father refused to foster the child’s connection with the mother unless he was court-ordered to do so.

In the end, the Supreme Court ordered that it was in the child’s best interests that the grandmother be awarded permanent custody, despite the father’s biological ties.

For the full text of the decision, see: B.J.T. v. J.D., 2022 SCC 24 

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.