Do Biological Parents Have Priority When Determining Parenting and Decision Making?


In Ontario, parenting laws are child-centred instead of focusing on “parental rights.” The legislation sets out that decisions must be in the best interests of a child and provides a range of factors that courts can consider when determining parenting and decision-making responsibility. But what role does biology play in this analysis, and can natural parents take priority over other parties? 

Do Natural Parents Have a Preferred Status for a Child?  

Determining parenting and decision making must be done in accordance with a child’s best interests. Under section 24(2) of the Children’s Law Reform Act (CLRA), priority must be given to the child’s physical, emotional and psychological safety, security and well-being. While acknowledging that this remains the ultimate test, cases have debated the status of parents relative to other interested parties. Foster v. Allison involved a contest between the child’s mother and the paternal grandparents. The mother had allowed the grandparents to care for the child on a day-to-day basis while she dealt with employment issues. However, the mother later sought to move closer to her new job. The court found that the mother never relinquished her rights and responsibilities. According to the judge, even though the child had thrived under the grandparent’s care, the status quo “did not inevitably trump the mother’s prima facie right” to decision making authority. Instead, for the judge, parents had a preferred claim or status over others. 

In K. (K.) v. L. (G.), the court indicated that the welfare of a child must remain the dominant consideration. However, parental claims should be considered and should be subject to serious consideration. LeFranc v. Siepamann was a 1999 case with the maternal grandparents and father contesting the parenting of a seven-year-old child. The grandparents made allegations of inappropriate conduct against the father and complained of his excessive drinking. However, in a conflict between a parent and a non-parent, the court found that the child’s welfare would be “best served in the custody of its natural parent.” Additionally, in the Saskatchewan case of M. (J.M) v. M. (M.), the court remarked on the “unique relationship which exists between a child and a parent.” 

Weighing Biological Ties to a Child

Parent-child ties are important, which has led some parents to claim that biological links carry special weight and that being a parent provides a preferential status. In Hutchinson v. Ross, the court considered the weight that biological ties carry in the best interests analysis. The father argued that the CLRA prioritized parents because it treated parents and non-parents differently. Specifically, non-parents applying for decision making over a child are required to provide a greater amount of information in their application, and the father argues this more onerous obligation requires courts to give priority to biological parents. The court acknowledged that under the CLRA, consideration could be given to a party as a biological parent of a child. However, this is merely one among a number of factors that can be considered. The court looked to the earlier case of Khan v. Kong. In that decision, Justice Nelson explained that there is no presumption concerning parental rights in disputes over decision making. The welfare of a child remains the paramount consideration, and the “benefit of a child’s bond to a biological parent is a question of fact to be determined in each case… The right of a biological parent is thus a secondary consideration to the best interests of the child”. Moreover, as Justice Wilson wrote in Racine v. Woods, the child’s tie with a natural parent is “very relevant in a determination as to what is in the child’s best interests. But it is the parental tie as a meaningful and positive force in the child’s life and not in the parent’s life that the court has to be concerned about.” This also meant that courts could consider non-biological parties just as close psychologically to the child. 

In Hutchinson, the court determined that parental claims were entitled to serious consideration. However, a court’s duty was to consider all the relevant factors, and if the child’s best interests favoured a third party, then the parental claim could not take priority. Consequently, while biological relationships are important and are recognized in legislation, it is not a determining factor. The father’s claim that parents had preferential status was based on a parental rights doctrine which has been rejected in favour of a child-centred best interests analysis. 

Biological Ties May Carry Minimal Weight

B.J.T. v. J.D. involved an appeal to the Supreme Court of Canada. The grandmother argued that the Court of Appeal overstated the importance of a parent’s tie to the child when it decided that the tie between biological parents to children was “very important” and should be considered a tiebreaker when parents and non-parents were otherwise equal. The court explained that biological parents do not have a prima facie entitlement to decision-making over children and that a child’s best interests is the paramount consideration and often the sole consideration under the legislation. The relevant statute did not direct courts to weigh biology in the best interests assessment. This signalled that it carried less weight. The court did find that it was within a court’s discretion to look at biological ties as a factor if they have some link to the child’s best interests. However, the Court of Appeal overstated the importance of biology in deciding that it was a unique and special factor that operated as a tiebreaker. Instead, the Supreme Court explained that judges are not required to treat it as a tiebreaker when parties are otherwise equal. 

Courts have moved away from a parental rights view and an emphasis on biology when determining parenting and decision-making matters. But courts have discretion in weighing relevant factors in a case, and it is open to courts to give weight to biological ties if the evidence supports it. Nevertheless, the Supreme Court explained that biology should usually carry minimal weight. One reason for this is that it can too easily lead courts to prioritize the parent’s claim over a child’s best interests. Also, a child’s bond should remain the focus rather than the biological link. For the court, “it is the biological parent’s caregiving role that fosters a child’s psychological and emotional attachment, not the biological tie itself”. If a biological parent can better meet the child’s needs, this can be captured and reflected in other relevant factors. The court also noted that family institutions have evolved, and biological ties’ importance may diminish alongside parenting and family composition shifts. 

Courts Recognize Shift in Family Composition

In finding that biology is not a tiebreaker when evaluating a child’s best interests, courts have focused on the child’s needs and interests rather than on “parental rights.” This also recognizes how family makeup has evolved and that biological ties are difficult to evaluate and do not encompass a relationship. It is merely one factor among many for courts to weigh.

Contact Windsor Family Lawyers For Decision Making And Parenting Time Matters

The lawyers at Howie Johnson Barristers and Solicitors in Windsor focus exclusively on family law matters for clients in Ontario and internationally, helping clients navigate family conflicts and presenting customized strategies enabling informed decision-making. Our lawyers can help you with solutions tailored to your unique circumstances. If you have concerns or wish to arrange a consultation, please visit us online or contact the firm at 519-973-1500.

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