“It is not an error, in my view, for a court to consider a biological tie in itself in evaluating a child’s best interests under this act, even though courts should be reluctant to superimpose the factor onto a statute when a legislature has omitted it, since courts and legislatures have progressively moved away from biological ties. Nevertheless, courts have considerable discretion in identifying and weighing the factors that are relevant in a given case (Van de Perre, at paras. 11-13, citing Hickey, at paras. 10 and 12). As a result, a court may conclude the evidence supports assigning weight to a biological tie if it can make the link to a child’s best interests. That said, a biological tie in itself should generally carry minimal weight for several reasons.
First, too great an emphasis on biological ties may lead some decision makers to give effect to the parent’s claims over the child’s best interests. Parental preferences should not usurp the focus on the child’s interests. As Wilson J. wrote in Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, at p. 185: “. . . a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations.”
Second, King v. Low concluded that a child’s bond is a consideration that should prevail over the “empty formula” of a biological tie (para. 104). King v. Low’s statement that a biological parent’s claims should not be “lightly” set aside must be read in the adoption context in which it arose and alongside the Court’s ultimate emphasis on the child’s bond (para. 101). King v. Low implies that biological parents’ claims must not be “lightly” set aside only because a biological tie is a presumed proxy for the parent with whom a child has the closest emotional or psychological bond. A child will frequently have a strong attachment to a biological parent as they are generally among the persons most involved in the child’s care. Yet this does not confer significant weight to a biological tie in itself. It is the biological parent’s caregiving role that fosters a child’s psychological and emotional attachment, not the biological tie itself.
There is “no magic to the parental tie” (Young, at p. 38, per L’Heureux‑Dubé J., dissenting in the result). The very need for child protection legislation underscores that a biological connection is no guarantee against harm to a child. On the other hand, a child can be equally attached to persons who are not their biological parents and those persons can be equally capable of meeting the child’s needs, as this case and King v. Low illustrate. Thus, King v. Low does not give significant weight to a biological tie in itself, but treats it as a presumed proxy for a child’s strongest bond.
Since biological ties are a presumed proxy for a bond, any advantages that favour the biological parent will usually be captured and subsumed within the broader inquiry into a child’s best interests. In particular, if the biological parent is closer to the child, and better able to meet the child’s needs, this will be reflected in a wider range of relevant factors, like the child’s relationship to the parent, the views and preferences of the child, and the ability to meet the child’s needs, including the child’s safety, security, and well-being (Wilton, Joseph and Train, at § 6:1). To the extent a parent relies on biology for considerations related to the child’s culture, race or heritage, it may be addressed within those factors.
Third, the benefit of a biological tie itself may be intangible and difficult to articulate (British Columbia Birth Registration No. 99-00733, Re, 2000 BCCA 109, 73 B.C.L.R. (3d) 22, at para. 117). This makes it difficult to prioritize it over other best interests factors that are more concrete. For example, in this case, the decisive factor was which parent was more likely to foster W.D.’s relationship with the other parent. This factor clearly benefits the child: it ensures the child is placed with the parent who will best promote the child’s emotional and psychological relationship with the other parent. In comparison, the benefit of the father’s biological tie itself is harder to identify. Further, any benefit from a connection to a biological parent, such as a “sense of security” in knowing one’s “roots”, as the majority of the Court of Appeal put it, may be achieved through access and parenting time rather than custody (para. 111).
As well, the importance of biological ties may diminish as children are increasingly raised in families where those ties do not define a child’s family relationships. Family institutions have “undergone a profound evolution” and changing social conditions, as noted, have diminished the significance of biological ties (Young, at p. 43; King v. Low, at p. 97). Change and evolution continues today. Contemporary shifts in parenting and family composition may undermine the relevance of biological ties.
Finally, as in this case, courts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another. This Court has moved away from stereotyped and formulaic solutions like the “tender years” doctrine (Young, at p. 43; A.C., at para. 92). Unsupported generalizations about, as in this case, the caregiving capacity of a biological father versus a grandmother, or vice versa, are similarly inappropriate. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child. It fails to take into account how often other family members assume care for children whose biological parents cannot act as caregivers as a result of addictions, mental health issues, criminal behavior, or other challenges. It also overlooks that a custody dispute that is superficially between two biological parents may frequently draw in several family members, as a parent’s extended family may also assist in care and feel invested in seeing a custody claim succeed. Here, not only did the grandmother step up to assist her daughter to care for W.D., but the father’s parents also help him with W.D.
For these reasons, I disagree with the majority of the Court of Appeal that biology must be a tie-breaker when two parties are otherwise equal under this legislation. A court is not obliged to turn to biology and engage in a fraught determination of who may be a closer blood relative. 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.”