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."