As family lawyers in 2024, we know that the composition of a household can take many different forms. When it comes to decision making responsibility and biological parents, things can get complex. Some children reside with their parents, others with extended family members, or even those not biologically related to them. When discussing placement of a child with extended family over biological parents, the question of biology does come in to play. But when it comes to the law, how important is biology to the parenting of children? What is the role of biology in determining who should have care of the child, and do biological parents trump all others?
Supreme Court Case on Child Custody: Do Biological Parents Trump All Others When It Comes to Courts Making Care Decisions?
The Supreme Court of Canada dealt with this exact issue in the case of B.J.T. v J.D., 2022 SCC 24. In this matter, a four (4) year old was taken into their care by Child Protective Services in Prince Edward Island. The child had been residing with the mother, and the father was not initially aware that the child had been born. The maternal grandmother was heavily involved in the child’s care, and when Child Protective Services became involved with the family, the child was initially placed with the maternal grandmother.
After the father was notified of the child, he sought care of the child. At a trial concerning placement of the child, the court decided the child should remain in the care of the maternal grandmother. This was reversed on appeal, with the father obtaining care of the child. The Supreme Court of Canada again reversed the decision, and the child was finally returned to the care of the maternal grandmother.
Child's Best Interests in Parenting Arrangement Decisions
What is perhaps most interesting about this case is the discussion surrounding the role of biology in parenting arrangements. The Supreme Court of Canada concluded that biology is one factor to consider, but it is not determinative of who should have care of a child. The Supreme Court decided that the focus of all Courts needs to remain on what is in the child’s best interests. The best interests of the child is the overriding concern of the court in all decisions regarding children, and biology is no cause to deviate from that. Biology is one factor in the best-interests analysis, but it is no more important than any other factor.
Further, when multiple parties are arguing they should have care of a child, biology is not to be used as a tie breaker, with the Supreme Court of Canada noting: “Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child.”
This is of particular relevance to our clients, as it reinforces the best interest’s analysis, and confirms this must be the paramount consideration – trumping even biology. As the makeup of families continues to evolve, it will be important for those seeking care of a child to be mindful of this principle.
The lawyers at Lenehan Musgrave LLP are happy to discuss the intricacies of an application to obtain care of a child by a person other than a biological parent. Contact us for more information about our family law services today.
