Skip to content

You are using an outdated browser. Please upgrade your browser to improve your experience and security.

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

[Janet] thanks for letting me know of your retirement… I’m sad to see you go but hope for your rest and enjoyment for all you’ve done for my family and others… With all my thanks I want to express all my appreciation for all you’ve done for us and all the grief it was to deal with! You were the right fit.
A.W., Client
I write this review based on my experience when working with Stacey Lee as my legal representative. Simply put, Stacey is attentive (or vigilant if you prefer), knowledgeable, professional, fair, and personable. It was important for me to have someone that was responsive and competent. I never waited more than 24 hours for a reply and am very happy with the resulting agreement that was created, as it represented a solution that was best for all parties involved – which was important to me. Stacey likes to say I was the ideal client, but the reality is that she was the ideal representative, providing legal advice, while keeping me abreast of the big picture. Based on my experience with Stacey, I highly recommend her.
S.N., Client
From the moment we met, Janet had not only a business approach to my situation but also a level of compassion and friendliness. I’ve worked now with Janet for years and not one time did she fail to meet my expectations. I have always felt at ease just hearing her voice. If she didn’t have the answer immediately, she has always provided one promptly. She has been my Rock and Sounding Board. I’ve referred her to others. If anyone is in need of a GREAT family lawyer, Janet Russell in my view is the lady to contact.
N.M., Client
Stacey, Thank you once again for all your help with my file. I can’t express how much I appreciated you having my back yesterday and you do it so calmly. Your perspective and guidance helped me a lot – thank you. It felt like a whirlwind of numbers but you helped me keep perspective as we went along…Thank you again for helping us bring things to closure.
B.F., Client
Very satisfied with the services provided by the lawyers at SVR Lawyers! It was a long and convoluted divorce process, but Abram Averbach, Cindy Lee and their assistants have helped me to navigate through it and finalize it. I highly recommend them!
J.B., Client
Stacey Lee handled the sale of my business and separation from a spouse attending to both my corporate and family law matters. Stacey provided a calm and realistic voice when tensions and emotions were high. Stacey approached the resolution of my files with opposing counsel in a collaborative way, seeking to reduce court appearances and conflict between all parties involved. I would work with Stacey again and recommend her to anyone requiring assistance in family or corporate matters.
H.S., Client

Find the right lawyer for you