Monday October 3, 2022

Biology v. Best Interest

Authored by: Terrance G. Sheppard, KC Posted in: Family Law

A recent Supreme Court of Canada decision has altered the way courts view and treat “stand-in” parents in child protection matters. In June 2022, the Supreme Court of Canada (SCC) released its decision on a child protection case in which a child’s maternal grandmother was granted custody over the child’s biological father. The SCC’s decision in BJT v JD confirmed that courts should not favour a child’s natural parent based only on biological ties when granting custody.[1]

Background of the Case

A child (“WD”) was born in PEI in October 2013. WD’s mother had been living in Alberta with his father until 2013, when an alleged incident of domestic violence caused her to move. At the time, she had not informed WD’s father that she was pregnant, and he remained unaware of WD’s existence until 2019.

When WD was approximately three months old, his maternal grandmother began living with WD and his mother in PEI, supporting them financially and assuming responsibility for WD’s day-to-day care. This arrangement continued for approximately two years, when WD’s grandmother moved back to her own residence. She returned after about one year and resumed her role as WD’s caretaker until August 2017, when WD’s mother began refusing the assistance. Shortly after, WD was taken into temporary care of the Director of Child Protection in PEI and placed in his grandmother’s care.

The Director contacted WD’s father in February 2019. Despite WD’s grandmother informing the Director of his history of violence, WD’s father was granted supervised daily visits which quickly turned to unsupervised overnight visits. He filed an application for permanent custody with the Director’s support.

Soon after, the Director removed WD from his grandmother’s care and placed him in a new home with foster parents, allowing only occasional supervised visits with WD’s grandmother. WD was then sent to Alberta to visit his father and was never returned to PEI. For the first six months, WD’s grandmother was prohibited from visiting WD and was allowed minimal supervised access afterward. WD’s grandmother requested she be granted permanent custody so WD could return home to PEI and she could continue providing the same care for WD as she had done for most of his life. 

Court Proceedings

A PEI hearing judge granted custody to WD’s grandmother and noted that the Director failed to consider assisting WD’s grandmother as his guardian, focussing only on assisting his biological father. Later, the court of appeal reversed this decision and granted custody to WD’s father, stating that his claim as a natural parent should be favoured and the hearing judge should not have considered the conduct of the Director.

In response, the SCC restored the hearing judge’s decision for WD to stay with his grandmother. The SCC found that the Director had promoted WD’s new relationship with his father over the pre-existing connection with his grandmother, and that it was entirely appropriate for the hearing judge to consider the impact of the Director’s conduct. Furthermore, the SCC stated that biological ties should carry minimal weight in assessing a child’s best interests.

How This May Impact Future Decisions in Family Law Cases

This decision sets the precedent of ensuring courts do not lean in favour of a child’s natural parent merely based on biological ties. Undoubtedly, the case will impact future decisions regarding custody in child protection matters.

Lawyers at BOYNECLARKE LLP can help you navigate the legal issues of family law. If you are seeking legal advice, please call 902-469-9500 or to schedule your free 30-minute consultation with a member of our Family Law team.


[1] B.J.T. v. J.D., 2022 SCC 24.

Share This Post:

Ask a question about this post.

Any Questions

Recent Blog Posts