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Biological tie should carry ‘minimal weight’ in child custody, Supreme Court rules

Status as birth parent 'simply one factor among many,’ top court rules in P.E.I. case.

PHOTO: The Supreme Court made its ruling in December, and released the reasons on Friday. (CBC)
Biology is one of many factors to be considered in child custody cases, and not a major one, the Supreme Court of Canada said in written comments released Friday, involving a P.E.I. case that it had ruled upon in December.

The court overturned a decision by the P.E.I. Court of Appeal and awarded custody to a boy’s grandmother, rather than his father, who had been unaware of the child’s birth until a P.E.I. official told him in 2019.

“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,” Justice Sheilah Martin wrote on behalf of a unanimous nine-judge panel of the Supreme Court of Canada.

“A parent’s mere biological tie is simply one factor among many that may be relevant to a child’s best interests… Judges are not obliged to treat biology as a tie‑breaker when two prospective custodial parents are otherwise equal.”

The judgment says the roots of the case go back to 2018, when a boy then four years old was apprehended by the Director of Child Protection Services in Prince Edward Island.

The child’s parents had been married in Alberta in 2012, but separated after less than a year. His mother then moved to P.E.I. without telling his father she was pregnant. The woman’s mother also moved to the Island to help her daughter look after the boy, providing both daily care and financial help.

Child protection services involved

The mother, however, suffered from mental health issues. In August 2017, she refused to allow her mother to have any more contact with the child.

The boy was placed under the care of provincial child protection officials several months later, and the grandmother was authorized as a foster parent. She was later granted legal status as a “parent” of the boy.

n early 2019, P.E.I. child protection services contacted the father in Alberta and told him he had a child by his ex-wife. The man said he wanted the boy to live with him and began to prepare for parenthood. Starting in June of 2019, he was allowed regular visits with the child on P.E.I., both supervised and unsupervised.

Even though the grandmother wanted to seek permanent custody of the boy, P.E.I.’s director of child protection services sent him to Alberta for a visit with his father, and then decided to allow the visit to go on for an indefinite time.

His maternal grandmother was allowed to visit the boy there, but only for a limited time.

Relationship with both sides key

A P.E.I. judge granted permanent custody to the grandmother rather than the father, after weighing all the evidence presented and saying the claims of both parties were more or less equal. Given that, the judge said the decisive factor was which person was more likely to foster a relationship between the boy and the other side of his family.

The grandmother was willing to allow visits and regular contact; the father said he would do so only if a court ordered him.

The P.E.I. Court of Appeal later overturned that decision, saying the first judge erred in not giving preference to the biological father. Only the province’s chief judge dissented in that ruling.

It is the biological parent's caregiving role that fosters a child's psychological and emotional attachment, not the biological tie itself.

“I agree with the majority of the [PEI] Court of Appeal that a court may consider biological ties in assessing a child’s best interests if they have some link to the child’s best interests,” Justice Martin wrote in the ruling.

“The majority, however, overstated the importance of a biological tie in itself when it concluded it was an ‘important, unique and special’ factor that must be a tie-breaker when two prospective custodial parents are otherwise equal…

“It is the biological parent’s caregiving role that fosters a child’s psychological and emotional attachment, not the biological tie itself.”

Kevin Yarr is the early morning web journalist at CBC P.E.I. Kevin has a specialty in data journalism, and how statistics relate to the changing lives of Islanders. He has a BSc and a BA from Dalhousie University, and studied journalism at Holland College in Charlottetown. You can reach him at


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