Custody Rights for Grandparents in BC Family Law Courts

Under the Family Law Act of BC, grandparents have the right to apply to the court for care of and time with a child. In these proceedings, the courts must consider the best interests of the child only. To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the child’s health and emotional well-being, the child’s views, the nature and strength of the relationships of the child, the history of the child’s care, the child’s need for stability, the ability of the person seeking care of and time with the child, the impact of family violence, the risks to safety, security or well-being of the child or other family members, and any civil or criminal proceedings relevant to the child’s safety. Any order made with respect to care of and time with the child must protect, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

Is A Biological Tie A Factor?

In the case of B.J.T. v. J.D., 2022 SCC 24, a maternal grandmother fought for her right to have custody of her four year-old grandchild, after being apprehended by the Director of Child Protection, giving rise to a lengthy custody battle, against the biological father.

Background

The child’s parents had a unstable relationship despite being married and living together. The mother left the father after an alleged incident of family violence. At the time, the father was unaware that the mother was pregnant. The mother struggled to care for the child and battled mental health challenges. When the child was three months old, the maternal grandmother moved in with the mother and child and began providing care for the child, supporting both the mother and child financially and providing daily care to the child. The arrangement ended suddenly when the mother’s condition worsened and the mother refused to allow the grandmother to contact the child. A few months later, the child was apprehended by the Director of Child Protection as a court had found the child was in need of protection, and the Director of Child Protection was granted temporary custody of the child.

The Director of Child Protection’s Conduct

After the child was placed in the Director of Child Protection’s custody, they entered into a foster parenting agreement with the grandmother and placed the child in her day-to-day care. The father was contacted by the Director of Child Protection and advised him that he had a child. He then began daily and unsupervised visits with the child, allowed by the Director of Child Protection, despite that the grandmother warning of alleged family violence. The Director of Child Protection continued to allow the father to visit the child and even supported the father’s application for permanent custody. The Director of Child Protection ended the foster parenting arrangement with the grandmother and removed the child from her care. The child was then sent to live with the father.

The Custody Battle

The grandmother and father both sought custody of the child. The court found that it was in the child’s best interest to be placed with the grandmother. The judge found that the grandmother would promote the child’s relationship with the father and his family, but that the father would only do so if there were a court order. The judge also found that the Director of Child Protection’s only goal was to assist the father to become the child’s parent based on his biological tie without considering the possibility of the grandmother.

The Court of Appeal’s Decision

This decision was reversed in the Court of Appeal, as the appellate court found that the judged had considered an irrelevant factor, namely, the conduct of the Director of Child Protection, and failed to consider the father’s argument that a natural parent’s custody claim should be favoured.

The Supreme Court of Canada’s Decision

However, at the Supreme Court of Canada, the decision allowing the grandmother to have custody was restored. The Supreme Court of Canada held that the guiding principle and paramount consideration in custody matters should only be the best interests of the child, and that the appellate court must act with restraint when reviewing a hearing judge’s conclusions concerning custody and to only intervene where there has been a material error, a serious misapprehension of the evidence, or an error in law.

Significant deference is owed to a determination made by a judge at first instance in light of a child’s best interests and an appellate court is not permitted to redo a lower court’s analysis to achieve a result that it believes is preferable in the best interests of the child.

The Supreme Court of Canada held that the appellate court failed to afford the appropriate level of deference to the hearing judge’s assessment. The hearing judge’s determination of the child’s best interests was determined on the basis of a thorough assessment of the extensive evidence in the proceedings and disclosed no material error, serious misapprehension of the evidence or legal error.

It was also decided that the judge’s consideration of the Director of Child Protection’s conduct did not taint her analysis. In addition, it was found that the judge made no error in her approach to the father’s biological tie to the child, a biological tie should generally carry minimal weight in the assessment as it’s simply one factor among many that may be relevant to a child’s best interests. The Supreme Court of Canada held that the courts were not obliged to treat biology as a tie-breaker. Placing too great of an emphasis on a biological tie may lead some decision makers to give effect to a biological parent’s claim over the child’s best interests.

Moreover, it was found that a child’s bond is a consideration that should prevail over a biological tie and that a biological tie does not guarantee that no harm will be done to the child. A child can be equally attached to a person who is not their biological parent, and that person can be equally capable of meeting the child’s needs.

What Are Your Rights as Grandparents in Family Law Matters in BC?

A grandparent’s bond can be very special and nurturing, and surely one that could be determined in the best interest of the child. At Illuma Family Law, we provide consultations on proceedings relating to care of and time with children in family law matters.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

The material provided in this blog is for general information and education purposes only and does not contain, and should not be construed as containing, legal advice applicable to a particular set of facts. If you require legal advice, please contact us for a consultation.