Biological Ties Hold No Weight in Best Interests of the Child


Often family law matters involving children focus on a few central parties: the mother, the father, and the children themselves. It is not often that non-parents play a role in parenting time and decision-making processes. Family comes in all shapes and sizes, and for some, their family is “chosen.”

The Supreme Court of Canada has recently ruled on how much biological ties to children tips the balance in parenting time and decision-making matters.

Parents Should Be Allowed to Make Decisions for Their Children Alone

Chapman v Chapman was one of the first family law cases in Ontario to consider the entitlements of non-parents in custody matters. In this case, the paternal grandmother applied for monthly access to her grandchildren through the Children’s Law Reform Act. An order was successfully made for her to have unsupervised visits without the parents’ presence. At trial, the judge concluded that despite the negative feelings the children had toward their grandmother, it would be in their best interests to spend time with her. The trial judge ordered regular visits throughout the year.

The Ontario Court of Appeal disagreed with the trial judge’s decision. There was no evidence that the parents were unable to act in the best interests of their children. In fact, the family was described as being “a well-functioning, child-centred family.” The right to make decisions with respect to children should be the parents’ alone (absent evidence they are unable to do so).

The Father Seeks Custody After Learning He Has a Son

In the recent decision, BJT v JD, the maternal grandmother gained access to her grandchild in a very different way. The parents had married in Calgary in May 2012 but separated when the mother was pregnant with their child in 2013. She moved back to PEI. After finalizing their divorce, the mother had sole custody of the child until January 2018. During this time, the mother struggled with schizophrenia and the child was temporarily based in the custody of PEI’s Director of Child Protection for three months. The child was then relocated to be cared for by his maternal grandmother. Eventually, the maternal grandmother applied for and was successful in becoming legally recognized as a parent.

The father did not know about the child’s existence but came to learn about it in early 2019. He met his son in the summer of that year. With the success of the meeting, the Director of Child Protection decided the child should move to Calgary to be with his father. A disposition hearing took place to determine whether the child should stay with his father or move back with his maternal grandmother. The trial judge ultimately determined that the child should be in the custody of the grandmother as the father’s disdain for the mother’s family worried the court that he would stop the child from having a relationship with that side of his family.

Court of Appeal Decides Child Should Live with His Biological Father

The Prince Edward Island Court of Appeal found that the trial judge had made an error in awarding custody to the grandmother because of “parental preference” due to being the biological parent. According to the Court, the grandmother should have had to demonstrate that she was in a better position to parent and ensure the child’s wellbeing than the father. Where all factors relevant to custody are considered, parental preference should be a deciding factor.

The Supreme Court of Canada Disagreed with the Court of Appeal

The Supreme Court of Canada reversed the Court of Appeal’s decision. Although the child had a closer biological tie with his father, and there was no evidence that his father would be unable to care for him, the child had also spent most of his life in the care of his maternal grandmother. If the father obtained sole custody, the relationship between the child and his mother’s side of the family would not be supported.

As it relates to lower court decisions, the Supreme Court held that deference must be given to the trial judge with regard to custody arrangements. Courts of Appeal should only intervene in the cases where there was “a material error, a serious misapprehension of the evidence, or an error in law.” That was not the case in this matter.

Biological Ties Carry Minimal Weight in Best Interests of the Child Evaluation

What this case is likely to be cited for in the future is its conclusion that biological ties do not tip the balance in favour of parents in the best interests of the child assessment. Justice Martin of the Supreme Court acknowledged that if biological ties are emphasized too much, it may result in decisions more in line with parental preference in lieu of the child’s best interest. 

Biological ties to do not protect children from harm, and children can be just as attached to those not related to them as their parents. They also do not dictate the level of closeness in a relationship between parent and child. The necessary part is that the child’s needs can be met.

This Decision Provides Recourse to Same-Sex Parents in Custody Matters

This decision will open the door for less traditional families to have an easier time resolving family disputes where one parent or caregiver is not directly related to the child. This is especially good news for LGBTQ+ families, where children do not have a biological tie to one or both parents. The modern family has evolved to include more conceptions of a family that go beyond tradition. It’s only logical that biological ties between parents and children be diminished for whatever is most beneficial to the child.

The Lawyers at Johnson Miller Family Lawyers Can Represent You in Your Family Law Dispute

At Johnson Miller Family Lawyers we recognize that working through disputes concerning parenting time and decision-making can take a toll on parents and children alike. With over 25 years of experience, our family lawyers can help ease this stress while working compassionately and efficiently towards a solution that has your family’s best interests in mind. 

We offer services across all areas of family law, including child supportspousal supportmediation, and more. We proudly serve clients in Windsor, Essex County, and throughout the region. Please give us a call at 519-973-1500 or reach out to us online to schedule an initial consultation today.


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