Should custody always be awarded to a biological parent over other caregivers?

In the recent case of BJT v JD, 2022 SCC 24 [BJT], the highest court in Canada has said no: judges are “not obliged to treat biology as a tie-breaker when two prospective custodial parents are otherwise equal” (para 87).

The Father:

In BJT, the biological father only found out he had a child when his son was removed from his biological mother at age 6 by the child protection authorities due to the mother’s inability to care for him.

There were reported incidents of the father committing family violence against the mother and her older son of a previous relationship (the child’s half-brother) before the child was born.

Despite this, the father was working with professionals to improve his personal and parenting abilities and gained supervised visits with the child.

The Grandmother:

In the child’s infancy, his maternal grandmother had moved in with him and his mother. She continued to care for him and provide financial support during his early years.

After the child’s apprehension, she became his foster parent under the law of Prince Edward Island and was applying to be recognized as his legal parent when the hearing occurred.

The Hearing Judge Decides in the Grandmother’s Favour:

Although both parties were equal in their ability to care for the child, the judge ruled that it was in the best interests of the child to have him in the care of the grandmother, who would better promote the child’s broader family relationships.

While she would facilitate the child’s visits to his father in Alberta, as well as his connection to his mother and half-brother in Prince Edward Island- the father was unwilling to do the same.

The Father’s Parental Argument on Appeal:

On appeal, the father put forward an argument called the ‘parental presumption principle’ which states that, where all else is equal or the non-parent is only slightly better, a biological parent should be preferred over a non-parent.

The Court of Appeal agreed and ruled that the child reside with the father.

Grandmother Prevails at Supreme Court of Canada:

The Grandmother appealed further to the highest court in our land. The Supreme Court of Canada clarified that the ‘parental presumption principle’ should no longer be used as a decisive factor in child custody cases.

Therefore, the hearing judge’s decision was reinstated and the grandmother was ultimately awarded custody of the child.

Does Biology Prevail? No.

The presumption that children are better-off with a biological parent was overturned back in 1985 by the Supreme Court case of King v Low where custody was granted to adoptive parents over the biological mother due to the stability and bond the child had with their adoptive parents.

Other than the comfort of knowing your “roots,” the court found that biology is not a significant factor in child custody cases where other options, such as access or parenting time, will provide the child with the same connections.

The case of BJT notes that “a child can be equally attached to persons who are not their biological parents and those persons can be equally capable of meeting the child’s needs” (para 104).

The Law on Child Custody:

The paramount consideration in a custody decision is the child’s best interests. A judge may consider biology, but it is only one factor in a highly contextual and fact-driven analysis.

Section 16(2) of Canada’s federal Divorce Act mandates that when making parenting or contact orders “the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”.

Our provincial and territorial legislation follow suit. Section 37(2) of the Family Law Act of British Columbia sets out factors that must be considered in these types of decisions, including the child’s emotional well-being, their health, their views if appropriate, and the ability of the parties to care for the child as well as the impact family violence may have on any future arrangement.[8]

Need Help?

To find out more about the law on child custody and how these factors may impact your family’s situation, you can reach our Family Law Team by calling our office at 604-853-0774 to request a consult today.