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Being a birth parent is not a tiebreaker in a custody dispute, the Supreme Court of Canada said on Friday.Sean Kilpatrick/The Canadian Press

Being a birth parent is not a tiebreaker in a custody dispute, the Supreme Court of Canada said on Friday as it explained why it had granted full custody of a young child to his maternal grandmother instead of his father.

A lower-court judge had found that both the father, who lives in Alberta, and the grandmother, who lives on Prince Edward Island, were good, safe, loving parents with whom the boy, who is now eight years old, had strong bonds. The tiebreaker for that judge, PEI Supreme Court Justice Nancy Key, was that the grandmother would foster the boy’s relationship with his father, including by supporting trips out West for the boy to stay with him. The father, on the other hand, was reluctant to encourage a relationship with the grandmother, unless ordered to do so by the court.

Justice Key gave custody to the maternal grandmother, but the PEI Court of Appeal overruled her and gave custody to the father, instead. In a 2-1 ruling, the appeal court said “the natural parent factor should be decisive” where other factors are more or less equal, or even where the case for the non-parent is slightly better.

The Supreme Court of Canada made its 9-0 ruling in December, shortly after a hearing. In its written reasons for that decision, released on Friday, it suggested the appeal court’s tiebreaker approach was anachronistic. “A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer blood relative,” Justice Sheilah Martin wrote.

That has not always been the case, she said in the ruling. In the 1950s, the Supreme Court established a presumption in favour of biological parents over adoptive parents. Then, in 1985, the court ruled against a biological mother who had turned her child over to adoptive parents, then sought the child’s return. The court said then that the child’s welfare came first. It was not biology per se that mattered, but the emotional or psychological bond between parent and child. The biological tie itself was an “empty formula,” the court said. A 1993 ruling said “there is no magic to the parental tie.”

“While biological ties may be relevant in a given case, they will generally carry minimal weight in the assessment of a child’s best interests,” Justice Martin wrote on Friday. She cited child-protection laws in PEI and other provinces, and the federal Divorce Act, none of which mention biology as a factor in determining a child’s best interests.

The decision Friday offers a stark contrast with child custody rulings in the United States.

“U.S. law sees natural parents as rights holders, if I can put it that way, in cases involving parenting, children, adoption and the like,” law professor emeritus Rollie Thompson, of Dalhousie University’s Schulich School of Law, said in an interview. “Whereas we in Canada tend to start from the child’s perspective: Who functions as the parent? We could call that a functional model, as opposed to a rights-bearing model.”

The result: “We don’t give the natural-parent tie anywhere near the weight it gets in the United States.”

Still, as exemplified by the case before the court, custody cases do not always work out that way in practice.

The backstory to the dispute is a complex one. The mother and father were married in 2012 and lived together in Calgary. The relationship ended amid disputed allegations that the father was violent toward the mother. They divorced in 2014 and the mother moved to PEI. She was pregnant and did not tell the father.

Over the next few years, the mother withdrew because of mental illness, and children’s aid became involved. The grandmother arrived from Alberta to help out, but returned to Alberta for a period of time. When the child was five, children’s aid informed the father that he had a son. Eventually he sought custody, and so did the grandmother, who by this time was back in PEI. The child-protection director for PEI sided with the father and placed the child in his care.

Justice Key, the lower-court judge, found that the child-protection director had not considered the possibility of the grandmother as the child’s guardian. The appeal court said Justice Key’s criticism of the child-protection director was irrelevant and blinded her to the child’s best interests, especially the preference that should be accorded the biological parent.

The Supreme Court of Canada disagreed, saying judges are obliged to consider how the conduct of child-protection agencies may have shaped, or even defined, the facts of a case.

Ryan Moss, a lawyer for the grandmother, said in an interview that his client had persisted through a drawn-out legal process and won because she was willing to put animosity behind her. “She may be a grandmother and pushing 67, but she is fiery,” he said, adding that she has picked herself up many times after being knocked down by the judicial system.

The father’s lawyer could not be reached for comment.

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