It's not about biology

A recent Supreme Court of Canada decision confirms that, when looking into the best interests of a child, the closeness of the blood relationship is not the deciding factor:

Courts have long struggled with the diversity of family structures, and the Supreme Court of Canada weighed in on Friday on the “natural parent presumption,” upholding a Prince Edward trial court decision. The ruling provided reasons why a grandparent was more suited to serve the interests her grandson rather than the boy’s biological father.

“A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer blood relative,” wrote Sheilah Martin, writing B.J.T v. J.D. on behalf of a unanimous nine-judge panel, in reasons for judgement released today regarding a case that was ruled on in December. The SCC ruling overturned a decision of the Prince Edward Island Court of Appeal.

Justice Martin also wrote that family institutions have “undergone a profound evolution” and changing social conditions, and that “contemporary shifts in parenting and family composition may undermine the relevance of biological ties.”

The SCC judge added that biological ties “may be relevant in a given case” they will generally carry minimal weight in the assessment.


The case concerns a seven-year-old boy with autism. His parents, JD and A, were married in Calgary in May 2012 for approximately a year before A separated with JD and moved back to PEI. However, unbeknownst to father, JD, A was pregnant with W at the time and gave birth to him in October 2013. Upon finalizing the divorce in 2014, A held sole custody of W until January of 2018.

However, A struggled with schizophrenia during this time. As her illness worsened, the Director of Child Protection stepped in and apprehended W, who was then placed in temporary care and custody of the child protection or for three months and then he was relocated and put under the care of his maternal grandmother, BJT. Ultimately, the grandmother BJT was legally recognized as a parent under the auspices of the Child Protection Act RSPEI 1988.

The case then went to the Prince Edward Court of Appeal in 2020, where a majority overturned the Supreme Court of PEI’s decision and awarded custody to the child’s father.

In December, the SCC revisited the decision and allowed the appeal from the bench, reversing the PECA’s finding. The grandmother was awarded custody by the SCC back in December, without reasons, in order to allow the boy to be placed in his permanent home as soon as possible. The SCC panel published reasons for its ruling Friday.

A key issue is something I've seen make the difference in many custody disputes: which prospective parent or caregiver is more likely to foster the child's relationship with the other.

In this case, while both the biological father and the grandmother were “more or less” equally qualified to be the child’s parent, Justice Martin wrote that the “the decisive factor was which parent was more likely to foster W.D.’s relationship with the other parent.”

This factor clearly benefits the child, she wrote, “as it ensures the child is placed with the parent who will best promote the child’s emotional and psychological relationship with the other parent.” As well, any benefit from a connection to the biological parent, such as a sense of security in knowing one’s roots may be achieved through access and parenting time rather than custody.

Justice Martin wrote that she agreed with the majority of the PEI appeal court that a court may consider biological ties in assessing a child’s best interests “if they have some link to the child’s best interests.”

However, the majority “overstated the importance of a biological tie in itself when it concluded it was an ‘important, unique and special’ factor that must be a tiebreaker when two prospective custodial parents are otherwise equal."

19 views0 comments

Recent Posts

See All

Canadian Lawyer on a recent Supreme Court of Canada decision regarding the best interests of the children, and proposed relocation far away from the other parent: In a family-law case concerning paren

The requirement is officially lifted as of May 24, when kids return to classes after the Victoria Day weekend: The Department of Education and Early Childhood Development will remove the mask requirem