“Section 39 of the Domestic Relations Ordinance provides that the rules of equity will apply in custody matters where they do not conflict with the provisions of the Ordinance. The application of equitable rules in this case would permit the Court to exercise the parens patriae jurisdiction and to treat the welfare of the child as the paramount consideration. I see no conflict in this respect with the Ordinance. Section 37, if it applied in this situation, would itself require a demonstration that the best interests of the child be served before it could be returned to the mother. The rules of equity, therefore, are to be applied in this determination.
This conclusion is consistent with modern authority in this Court and others: see Racine, Beson, and Re Moores and Feldstein. I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.
In my view, which I find supported in modern authority in this country and in the United Kingdom: see Re Moores and Feldstein; Beson; Racine; and J. v. C., [1970] A.C. 668 (H.L.), and particularly where the governing statute preserves and dictates the application of the rules of equity, the Court in questions of contested custody, including contests between a natural parent and adoptive parents, must consider the welfare of the child the predominant factor and give it effect in reaching its determination.”
King v. Low, [1985] 1 SCR 87, 1985 CanLII 59 (SCC) at 26, 27 and 34