Custody and Access for Non-Biological Guardians

June 24, 2022

written on behalf of Feigenbaum Law

For those keeping track at home, our series of blogs focusing on family law issues continues following yet another Supreme Court of Canada decision resulting in significant new interpretations of common family law matters. Earlier this month, the country’s highest court ruled that the “natural parent presumption” should be given no more weight than other considerations when deciding what is in the best interests of a child during custody and access disputes. This opens the door for non-biological guardians seeking custody of their children.

Grandmother acts as guardian of child

The circumstances leading to the trial involved parents who were married in Alberta in 2012. The marriage was short-lived. The mother left the province following an alleged incident of domestic violence. After leaving the relationship, the mother moved to Prince Edward Island.

Unbeknownst to the father, the mother was pregnant when she moved across the country. She delivered the baby in Prince Edward Island in late 2013 and struggled to care for him due to mental health troubles she was experiencing. Here mental health problems progressively provided further challenges to the mother in parenting her child.

Fortunately, the child’s maternal grandmother was able to step in and provide care for the child. Over the next two years, the grandmother was heavily involved in caring for the child. At one point, the grandmother had to leave the province for a year. She returned in 2017 and continued to care for her grandchild, but this arrangement did not continue for long. The grandmother’s help ended abruptly after the mother’s mental health struggles worsened. The grandmother was cut off from the child as a result. It was soon determined by the Director of Child Protection (“the Director”) that the mother was unable to care for the child on her own. Because of this, the child was placed into the care of the Director who then made arrangements for the grandmother to serve as a foster parent for the child.

Father seeks to gain custody of the child after learning of him

The Director reached out to the father in February 2018 to inform him that he had a child. The father quickly took action to establish a relationship with his son. He flew to Prince Edward Island to meet him in June of that year. Despite the grandmother’s actions to alert the Director about the father’s history of violence and her success in being named a “parent” of the child under the province’s Child Protection Act, the Director still determined that it would be most appropriate for the child to move to live with the father in Alberta.

The grandmother filed an action in the courts to gain permanent custody of the child. The father asked for the same. During the trial, the judge concluded that the child’s best interests would be served if he stayed with his grandmother. One of the reasons cited for this was that the grandmother told the court she would proactively encourage a relationship between the father, his family, and the child. Meanwhile, the father told the court that he would only do the same if he was obligated to do so through a court order. The trial judge was critical of the Director, stating they had focused on returning the child to the father to the extent that they did not consider the grandmother’s suitability as a “parent.”

The father appealed the trial judge’s decision and was successful in doing so. The Court of Appeal overturned the trial judge’s decision, stating that more consideration should have been given to the father’s status as the biological parent of the child.

Appellate courts must give deference to the initial decision-maker

The grandmother appealed the decision to the Supreme Court of Canada. The Supreme Court’s decision focused heavily on two areas. First, it considered the circumstances in which a Court of Appeal should overturn a trial judge’s decision in matters relating to the best interests of a child. The second critical area of focus was the suitability of the “natural parent presumption.”

The Supreme Court wrote that overturning a trial judge’s decision in custody matters should only occur when there has been “a material error, a serious misapprehension of the evidence, or an error of law.” In overturning the trial decision, the Court of Appeal failed to give deference to the trial judge’s decision. Deference requires that the initial decision-maker’s reasons are respected and given weight when their decision is being reviewed.

The best interests of the child are determined by a number of factors, not just one

The Court of Appeal had held that the best interests of the child was the sole consideration in determining questions related to children in family law situations. This approach, according to the Supreme Court, meant that any other considerations could not be given significant weight.

The Supreme Court held that the best interests of the child should really be determined through the consideration of a number of different factors. No single factor is more important than any others. Thus, a biological connection is not enough on its own to justify altering a trial judge’s decision.

This decision is important because it shows how courts should be expected to treat and consider the best interests of the child following developments in legislation and now common law.

Feigenbaum Consulting can help you with your family law issues

Feigenbaum Consulting is located in Thornhill, just minutes north of Toronto. In addition to family law, we also help clients for both personal and corporate tax issues. Our background in both areas helps us service clients with complex family law needs often experienced by high net worth individuals. The firm proudly represents clients in Canada, the US, and worldwide. To schedule a consultation on your family law matter, call (416) 777-8433 and toll-free at (877) 275-4792 or reach out online.


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