Our Supreme Court of Canada (SCC) made a recent unanimous decision affirming the priority of the best interests of a child over the wishes and biological connections, if any, of the adults.
In this case there was a custody dispute between the child's father and maternal grandmother after child protection services removed the child from the biological mother.
On 3 June 2022, the Court stated at paragraph 89 in BJT v JD, 2022 SCC 24, that its earlier decision in King v Low, [1985] 1 SCR 87, was still correct when it ended the view there was a presumptive right of custody in favor of biological parents over adoptive parents.
At paragraph 87 of this recent June 2022 decision, the SCC overturned the PEI Court of Appeal which had stated that while there was no presumption in favor of biology, biological parenthood was still very important and the biology should be a tie breaker when a custody choice is being made between otherwise equal applicants.
The SCC held unanimously that biology is merely one factor among many when deciding the paramount issue of what is best for a child, unless legislation specifically states otherwise.
Our 2012 British Columbia Family Law Act and the new Federal Divorce Act both emphasize that the best interests of a child are not just paramount but the only consideration.
However, at paragraph 101 the SCC added that a court may consider biological ties as one of the factors if there is a link to the best interests.
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