Departing from the “Natural Parent Presumption” in BJT v JD
Families come in all shapes and sizes, and the primary caregivers of a child in a given family aren’t necessarily always the child’s parents. The law, however, has struggled to grasp the diversity of family structures in the context of custody hearings. The Prince Edward Court of Appeal (“PECA”) faced this dilemma in BJT v JD 2020 PECA 14 (BJT), a custody dispute between the child’s father and his maternal grandmother. In upholding the “natural parent presumption”—the presumption that a child’s biological parent is suited to serve the best interests of the child—the majority of PECA ruled that custody should be awarded to the child’s father.
Last month, the Supreme Court of Canada (“SCC”) revisited the decision and allowed the appeal from the bench, ultimately reversing the PECA’s finding. While the SCC has not yet published reasons for their decision, the submissions made by the parties and intervenor suggest the decision turned on finding the natural parent presumption no longer valid.
Facts and the Trial Decision
This case concerns W, a seven-year-old boy with autism. His parents, JD and A, were married in Calgary in May 2012 for approximately a year before A separated with JD and moved back to PEI. Unbeknownst to JD, A was pregnant with W at the time and gave birth to him in October 2013. Upon finalizing the divorce in 2014, A held sole custody of W until January of 2018 (BJT, para 4). However, A struggled with schizophrenia during this time. As her illness worsened, the Director of Child Protection (“the Director”) stepped in and apprehended W (BJT, para 7). W was placed in temporary care and custody of the Director for three months and then he was relocated and put under the care of his maternal grandmother, BJT. When the Director sought to update the application from temporary to permanent placement, BJT filed a motion to be added as a party in the proceedings. Ultimately, BJT was legally recognized as a parent under s. 1(s)(ii) and (iv) of the Child Protection Act RSPEI 1988, Cap C 5.1 (BJT,para 10).
In February 2019, JD learned about W’s existence and sought counselling to prepare to become his parent (BJT, para 11). JD met W in June or July of 2019 in PEI, and because the meeting had gone well, the Director decided to send W to Calgary to live with his father later that summer. W has been living with his father ever since (BJT, para 13). A’s condition did not improve and in February 2020, it was determined that W needed protection from his mother.
Subsequently, a disposition hearing was held to determine whether the child should be placed with the father or maternal grandmother. The disposition hearing, however, was more akin to a custody battle despite no custody application being made under the Custody, Jurisdiction and Enforcement Act, RSPEI 1988 Cap C-33 (BJT, para 16). In order to simplify the proceedings, the court proceeded as if the disposition hearing was a custody hearing. Both parties were vehemently opposed to the other holding custody, as BJT blamed JD for abusing her daughter A, while JD blamed BJT for hiding the existence of his son from him (BJT, paras 24-5).
In June 2020, the trial judge ruled that custody and guardianship should be placed under the grandmother pursuant to s. 38(2)(e) of the Child Protection Act (BJT, para 29). Although the trial judge held that both the father and grandmother “are more or less equal in their ability to care for W,” the father’s animosity towards the grandmother strongly suggested that he would not ensure that W had a meaningful relationship with his family in PEI (BJT, paras 27-8). On the other hand, the grandmother was willing to promote a relationship between W, JD, and his family in Calgary, which the judge believed was in W’s best interest.
The PECA Decision
The majority of the PECA found that the trial judge erred in principle by awarding custody to BJT, as she had failed to consider JD’s single submission of the parental preference, or natural parent, claim. The crux of the father’s argument was that being a biological parent to W warranted serious and preferential consideration in awarding custody, and all other things equal, the parent should be given the priority in custody decisions (BJT, para 44). A third party seeking to obtain custody of a child would then have to defeat the “parental presumption”, rebutting “the presumption that the parent is in a better position to ensure his child’s wellbeing” (BJT, para 42, citing C(G) v V-F(T)  2 SCR 44). In the reasons provided, the trial judge did not meaningfully deal with the parental presumption argument or the case law cited by JD (BJT, para 56). The court found that this was an error in law.
When the majority engaged with the natural parent factor argument, they found that it was one of many relevant factors in assigning custody whose weight could vary depending on the situation (para 107). They went on to state that in cases where all relevant factors are considered but the answer is still unclear as to who custody should be awarded to, “the natural parent factor should be decisive” (BJT, para 113). Since W would be equally well off with his father or grandmother, the majority found that the child should be placed in permanent custody of his father (BJT, para 123).
In contrast, the dissenting judge held that the trial judge had rightfully considered the natural parent factor and gave it the appropriate weight. He argued that the judge canvassed numerous factors, including those in the CPA, as well as the fact that JD was W’s natural parent (BJT, para 172). He also added that despite JD’s assertion that he was W’s primary caregiver in Calgary, W was still in the Director’s custody with a temporary living arrangement in Calgary. Thus, the mention of a bond between the father and son was exaggerated; and, in light of the fact that BJT raised W for most of his six years, it could be argued that BJT had formed a stronger emotional bond with W (BJT, para 174). Coupled with the fact that appellate courts should apply a deferential standard of review in custody cases, the dissenting judge ruled that the trial judge’s original ruling should be followed (BJT, para 163).
The SCC Decision and its Implications
In a brief decision given from the bench, the SCC unanimously affirmed the trial judge’s decision before publishing reasons in order to ensure that W’s guardianship situation could be resolved in an expedited fashion. It is likely that in its reasons, the SCC would discuss the application of the natural parent factor and its weight in situations where all other factors do not favour one person having custody over another. While it’s unlikely that the Court, assessing the best interest of the child, would dismiss the factor’s importance altogether in. However, given that the court held in favour of the appellant BJT, one could presume that the factor may not bear as much importance as it has over the decades.
The LGBT Family Coalition, an intervenor in the case, presents a oft overlooked perspective on the reasons as to why the biological parent factor should not be given as much weight as it had in the past. They argue that in LGBTQ+ families, children will not be biologically related to all of their parents and that including biology as a factor in determining custody could disadvantage the non-biological parent in the relationship (Factum, paras 15-7). Thus, by placing emphasis on the biological factor, courts could inadvertently discriminate against non-biological parents.
Further, like in BJT v JD, there will be custody disputes where the best interest of the child will be better served by a non-biological parent who has a preexisting emotional bond with the child. While emotional connections may be immeasurable, to remove a child from an environment where they are already comfortable for the sole reason that the guardian in that environment is not the child’s parent would not only be counterproductive but potentially traumatizing to the child. At an age where a child may feel strongly attached to adult figures in their life, a judicial system that has little regard to the maintenance of a child’s attachment relationships would be one that is heartless and cruel. This case departs from such a detached conception of family law, and may contribute in preserving established relationships which foster a child’s wellbeing.
Ultimately, the focus of BJT v JD, like all child custody cases, was on the best interest of the child. Here, the SCC was correct to return W to his maternal grandmother in PEI, with whom he had spent the majority of his childhood. As we await the SCC decision, one can hope that the Court expresses its desire to move away from anachronistic family law standards such as the biological parent presumption and towards a contextual analysis that takes into account all types of families.