In Canada, as the make up of families change, the resolution of parenting issues becomes more complex. The laws in each province and the federal laws set out a non-inclusive list of factors for the Court to consider when deciding parenting issues. Included in those factors is the relationship between the child and the parent and with other family members.
Two recent cases highlight a significant change in interpreting
the law regarding a child's best interests and the effect of a
child's biological ties on the outcome.
Earlier this year, the Supreme Court of Canada released a decision
which considered the importance of biological ties when determining
a child's best interests. In B.J.T. v. J.D., the biological
mother and father lived in one of Canada's western provinces,
and had a short but tumultuous marriage. The mother had mental
health issues; the father had allegedly been physically violent.
The mother returned to the east coast of Canada, without the father
knowing about the pregnancy. The mother's mental health issues
worsened after the baby's birth, and ultimately the baby's
maternal grandmother moved to the east coast to help care for the
child. The grandmother cared for the child for over two years. The
mother's mental health declined further and she refused to
allow the grandmother to continue to care for the child. Child
protection services apprehended the child from the mother, and the
grandmother returned to care for the child. Meanwhile, the father,
despite that he had never met the child, decided that he should
bring the child back to western Canada to live with him. After a
period of integration between the child and the father, child
protection services agreed that the father should have the child.
The grandmother disagreed.
The trial judge decided that it was in the child's best
interests for the grandmother to continue to raise the child. The
provincial Court of Appeal set aside the trial judge, relying in
part on the father's closer biological ties with the child.
Justice Sheila Martin of the Supreme Court of Canada, wrote for a unanimous Court. In restoring the trial judge's decision, Justice Martin considered the relevance of a biological tie when determining a child's best interests. Martin, J. recognized that the institution of the family in Canada has undergone a profound evolution, and a biological tie is just "one factor among many".
As both the grandmother and the father had a biological
connection to the child, Martin, J. went further, commenting that
"a biological tie may be intangible and difficult to
articulate; it is difficult to prioritize over other more concrete
best interest factors". The Supreme Court of Canada agreed
with the trial judge, who had decided that the grandmother was more
inclined to facilitate the father's time with the child than
vice versa, and as such, the grandmother should be the child's
primary caregiver.
In B.J.T., Justice Martin recognized the changing nature the
Canadian family, observing that children are increasingly being
raised in families where biological ties do not define the family
relationship.
Again in 2022, the issue was front and centre in the province of Ontario where the parties seeking to be the child's primary parents had no biological ties at all to the child.
J. and C. were male same sex partners who had been together for 10 years. They were friends with a woman, B. and her new partner, A. As friends, the woman, B., had discussions with J. and C. about acting as their surrogate. Both couples were of limited means, and while they tried to deal with the legal aspects of a surrogacy arrangement, no surrogacy agreement was signed. Circumstances changed when B. inadvertently became pregnant with her partner, A's child. Even though the initial plan had been that C would provide the sperm, once B became pregnant, plans for the baby did not really change. However, a formal surrogacy arrangement was no longer possible as surrogacy law requires that a legally binding agreement be made before pregnancy.
Throughout B's pregnancy, J. and C. prepared their home for
a newborn, contributed to B's pre-natal expenses and organized
their future work schedules so that between them, they would be
full time caregivers for the baby.
B and A did none of these things.
When the baby was a day old, B and A handed her over to J and C in
a coffee shop parking lot. But when the baby was four months old
—having not seen her at all since her birth, —B. and A.
demanded the baby back.
Predictably, litigation followed.
At a trial in the Superior Court of Ontario, the judge, Gregson,
J. had to decide whether the child should continue to live with .J
and C., who should be responsible for making major decisions for
the child and what arrangements, if any, should be for contact with
the non-residential couple.
Gregson, J. decided that J. and C.—despite having no
biological ties to the baby –should be the child's
primary caregivers and should make all major decisions for the
child. Among other reasons, she found that the baby was flourishing
in the care of J. and C., and that they were also prepared to
facilitate B.'s and A.'s relationship with the baby.
As Justice Martin of the Supreme Court of Canada observed in B.J.T., "change and evolution [in the Canadian family] continues today." As a result, in Canada, a mere biological connection to a child is no longer a 'tiebreaker' when the best interests of a child are involved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.