The Supreme Court of Canada (“SCC”) clarified the factors to be given in consideration when determining the parenting time arrangement that is in the best interests of children. In B.J.T. v. J.D., 2022 SCC 24, the SCC determined that the biological connections between children and their birth parents are not the deciding factor. This decision has significant implications for families with parents who are polyamorous, stand in loco parentis, or identify as part of the LGBTQIA2S+ community since their children may not be biologically related to all of their parents.
In B.J.T. v. J.D., the mother and father were married in Alberta. The relationship ended less than 12 months after marriage, and the mother moved to Prince Edward Island (PEI). The child was born shortly after the move and the father, who remained in Alberta, was not aware that the mother had been pregnant. After the child was born in 2013, the maternal grandmother moved to live with the mother and child to help provide support for them. When the child was 4 years old, the mother began struggling with schizophrenia and refused to have the grandmother involved in their lives. The child was eventually apprehended by the Director of Child Protection (the “Director”) after the mother’s mental health declined. The child was placed in the grandmother’s care. The Director then notified the father of the child’s existence and the father sought to have the child live with him in Alberta. The grandmother and father each applied for permanent custody for the child.
At trial the judge held that it was in the child’s best interests for the grandmother to have custody. The father appealed to the PEI Court of Appeal, which overturned the trial decision and gave the father custody while noting the importance of the biological tie that he shared with the child.
The grandmother appealed to the SCC who restored the trial judge’s decision and granted the grandmother custody of the child.
The SCC held that a parent’s biological tie to a child is only one factor among many when evaluating a child’s best interests in custody disputes. Judges are not required to treat biology as a “tie breaker” when two prospective custodial applicants are otherwise equal in parenting abilities: significant emphasis on biological ties could lead judges to consider one parent’s claim over the other without properly analyzing what is in the child’s best interests. A particular child’s best interests is always paramount.
The SCC stated, “A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer blood relative” and “no priority is given to one [best interest of the child] factor over the other.”
The LGBT Coalition (the “Coalition”) was an intervenor in this case and argued that non-biological parents, especially those in the LGBTQIA2S+ community, would experience discrimination in parenting disputes if there was a delineated preference towards biological parents in parenting matters. The SCC agreed, noting that there are: “contemporary shifts in parenting and family composition, and the fact that there is a growing number of families in which biological ties do not define a child’s family relationships,” and that family institutions have “undergone a profound evolution…contemporary shifts in parenting and family composition may undermine the relevance of biological ties.”
This decision, which to no small extent mirrors recent changes to the Divorce Act (Canada), recognizes non-biological parents and non-parents who have taken on a parental role and gives such individuals equal standing/consideration in relation to biological parents when the best interest test is applied. Such individuals will have their custody actions considered on the basis of the best interests of their children and not be disadvantaged because of a lack of a biological ties that the other parent and their children may share.
If you have questions or require legal advice about child contact and decision making rights of non-biological parents, contact one of the family law lawyers at SVR Family Law