Do Biological Ties Matter Anymore in Today’s Modern Family?

  • December 01, 2022
  • Alison Boyce

For many years, the court’s default position has been that it is in the best interests of the child to remain with their biological parents. However, more and more cases are being released which question this assumption. The Canadian family has become more complex and quite diverse over the past few years, and the courts are beginning to recognize that the nuclear family is no longer the only option. The courts must consider the resolution of parenting issues and who will look after the best interests of the child rather than a rights-based model which puts the natural parents as the rights holders.

The Supreme Court of Canada made a unanimous decision in the case of B.J.T. v. J.D., 2022 SCC 24 whereby the court upheld that a grandmother should be awarded primary care of her grandson over and above his biological father. The Supreme Court commented that both the biological father and the grandmother were equally qualified to be the child’s parent. Justice Martin commented that the decisive factor was which parent was more likely to foster the child’s relationship with the other parent. The Supreme Court commented that the appellate court had overstated the importance of biological ties in itself when it concluded that it was an important, special, and unique factor that must be used as a tiebreaker when two prospective custodial parents are otherwise equal. A biological tie is only one factor among many that may be relevant to a child’s best interest. The Supreme Court stated, “While it is not an error for a court to consider a biological tie in itself in evaluating a child’s best interests, a biological tie should generally carry minimal weight in the assessment.”

The Supreme Court also commented that “any relevance in a case like the one at bar, where both legal parents have biological ties and nothing in the record establishes that one type of tie is better than the other”.

Justice Martin noted that, “A child will frequently have a strong attachment to a biological parent as they are generally among the person’s most involved in the child’s care. Yet this does not confer significant weight to a biological tie in itself. It is the biological parent’s caregiving role that fosters a child’s psychological and emotional attachment, not the biological tie itself."

Blended families are also becoming more common given the increasing rate of divorce in Canada. It is hurtful when a step-parent is cut out of a child’s life as a result of a breakdown in a relationship with a partner. In the case of Hicks v. Geist, 2022 ONSC 5671, a single mother of a one-year-old daughter met her new partner in July 2018 and they began cohabitating one year later. They separated three years later and the mother refused the step father’s request for parenting time. Although the relationship was fairly short in duration, the three years had given the stepfather an opportunity to establish a close bond with his stepdaughter (for almost her entire life). He was “Daddy” to her, and the child had no contact and no relationship with her biological father. The judge accepted the stepfather’s evidence and found that there had been no distinction drawn by reason of the stepfather not being the biological father. The father had presented evidence that the mother “proclaimed and encouraged the stepfather’s excellence in being a parent”.

Section 62(3) of the Ontario Children’s Law Reform Act has expanded its definitions to allow “a person who has demonstrated a settled intention to treat the child as a child of his or her family” or “a person who had the actual care and upbringing of the child immediately before the application”. In the Hicks v. Geist case, there was no doubt for the judge that the stepfather had that special status. The court noted that a special status is not determinative, but part of the overall analysis. Some of the key factors of the best interest test that must be considered are “the length of the relationship, the age and developmental stage of the child during the relationship and when contact ceased, the length of time since contact ceased, and the extent of the step-parent’s participation in usual parenting imperatives”. The result was the stepfather was granted parenting time with his stepdaughter.

Parties who wish to continue a relationship with their non biological child post separation need to be aware that there are possible financial obligations as well. In Hicks v. Geist, the stepfather requested that he be permitted to pay child support. In the case of Spry v. Shetler, 2021 ONSC 603, the court determined that a boyfriend had to pay child support for his common law partner’s child. The stepfather was acting as a parent in the relationship with his common law spouse for seven years. Interestingly, the court considered whether the child participates in the extended family in the same way as a biological child would, whether the person provides financially for the child and whether the person disciplines the child as a parent. The court also considered whether he or she is responsible as a parent to the child and the nature or existence of the child’s relationship with the absent biological parent. It should be noted that when the biological parent is not present and a support obligation cannot be quantified or enforced, there may be circumstances where the stepparent will have to meet the primary obligation of child support in order for the child to continue to enjoy the standard of living, he or she enjoyed while living with the stepparent.

The court also noted that the biological parent in this case had no contact with the child in years and was not a party to the proceedings. The biological father’s circumstances and ability to provide support were entirely unknown and did not set an expectation or obligation for the mother to pursue this path. The court determined that given there was a prima facie case that the stepfather had stood in the place of a parent, he had a child support obligation to ensure that the “children first” aim of the Guidelines was honoured. The boyfriend could not unilaterally terminate the relationship.

As Justice Martin observed in B.J.T. v. J.D., “Family institutions have ‘undergone a profound evolution …  Change and evolution continues today.”

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