B.J.T. v J.D., 2022 SCC 24 [B.J.T.] is a case concerning a custody dispute over a child in relation to the Child Protection Act, R.S.P.E.I. 1988, c. C-5.1 [CPA], Prince Edward Island’s child protection legislation.
The story of the parties is long, complicated, and distressing, with the battle for custody of W.D., the child, between his biological father and his maternal grandmother at the center. Also essential to the story is the involvement and conduct of the Director of Child Protection in Prince Edward Island (“Director”) and how their decisions and actions shaped the context of this case. At the disposition hearing to settle permanent custody, the hearing judge awarded custody to the grandmother. The father appealed to the Court of Appeal for Prince Edward Island (“PECA”), and the majority of the PECA allowed his appeal and awarded custody to the father. The grandmother subsequently appealed to the Supreme Court of Canada (“SCC”), and the SCC unanimously allowed her appeal from the bench and restored the order of the hearing judge.
Past contributor Grace Shin published an article on this case after the SCC rendered its judgment from the bench but before the SCC released its reasons for judgment. That article gives a thorough summary of the facts and the procedural history and anticipates the SCC’s reasons for judgment. This article will exclusively explore the SCC’s reasons, with a focus on the principles and standards that the SCC set in its judgment and the implications of those principles and standards for determining future custody cases.
The SCC’s Decision
In its decision, the SCC considered three issues arising from the parties’ arguments:
When can an appellate court intervene in determining the best interests of a child — i.e. what is the standard of review for disposition decisions pursuant to child protection legislation?
Did the hearing judge err in her determination of the child’s best interests in the case at bar?
How does the natural or biological parent factor weigh in determining the best interests of a child in a child protection matter? (B.J.T., para 50)
Appellate Intervention and the Applicable Standard of Review
In deciding most custody matters, including custody matters under the CPA, the primary consideration is the best interests of the child (B.J.T., para 53). To determine the best interests of the child, courts apply multiple factors found in the applicable legislation and exercise a high level of judicial discretion, which allows them to make decisions driven by facts and context (B.J.T., para 53). Most pieces of legislation, including the CPA, do not give priority to any single factor over another; courts rely on judicial discretion to determine what weight to assign to each factor based on the available evidence (B.J.T., para 55).
Given the “polymorphous, fact-based, and highly discretionary nature” of a decision made by a judge at first instance, an appellate court is “not in a position to determine what it considers to be the correct conclusions from the evidence” (B.J.T., paras 57, citing Van de Perre v Edwards, 2001 SCC 60 [Van de Perre] at para 12, and 58). The SCC held that the standard from Van de Perre should govern appellate decisions concerning custody in a child welfare context: an appellate court is not entitled to intervene unless there has been “a material error, a serious misapprehension of the evidence, or an error in law” (B.J.T., paras 52 and 56). This standard requires appellate courts to give significant deference to the decisions of judges at first instance and avoid “[redoing] a lower court’s analysis to achieve a result that it believes is preferable in the best interests of the child” (B.J.T., para 57).
Before moving on to determine the second and third issues in its reasons, the SCC firmly established the significant deference that appellate courts need to give to judges of first instance in child welfare custody cases. It was appropriate for the SCC to do so because the Van de Perre standard best serves decision-making concerning the best interests of the child.
As noted by the SCC, the judge at first instance is “in the best position to assess evidence pertaining to the best interests of the child” (B.J.T., para 55, citing P. (D.) v S. (C.),  4 S.C.R. 141 at para 192). Furthermore, significant deference encourages finality in family law litigation and “avoids giving parties an incentive to appeal judgments in the hope that the appeal court will have a different appreciation of the relevant factors and evidence” (B.J.T., para 59, citing Van de Perre at para 11). By confirming the Van de Perre standard as the applicable standard of review, the SCC set up the expectation that it would only uphold the PECA’s decision if it found that the PECA correctly identified that the hearing judge made a material error, a serious misapprehension of the evidence, or an error in law. In other words, the SCC would not allow the PECA to overturn the hearing judge’s decision simply because it disagreed with the hearing judge’s assessment of the evidence and her conclusion.
The Hearing Judge’s Determination of Child’s Best Interests
One of the main points of contention in determining whether the hearing judge erred in her determination of W.D.’s best interests was whether the hearing judge ought to have considered the Director’s decisions and actions to make her decision.
In addition to pointing out the courts’ power to supervise child protection agencies, the SCC noted that “a child protection agency’s conduct can provide crucial context for understanding the status quo” (B.J.T., para 68). In this case, because the Director had directed every aspect of W.D.’s life for a significant period, the SCC held that it was not a legal error for the hearing judge to consider the Director’s conduct to gain an understanding of “how a certain status quo was created” (B.J.T., para 69). Understanding what created the status quo can be a crucial component of the best interests of the child analysis; the events that shaped the status quo could show that the status quo is not in the best interests of the child (B.J.T., para 73).
Considering the conduct of a child protection agency can also be critical for examining the parties’ arguments and evidence. The SCC held that if a child protection agency makes representations regarding the fitness of the parents, as the Director did in this case, a court should be allowed to assess the agency’s prior relevant decisions and actions (B.J.T., para 75). By doing so, a court can decide how much weight to place on the evidence or arguments of the agency (B.J.T., para 75). In addition, the SCC noted that the hearing judge considered the Director’s conduct to properly assess claims made by the father and grandmother and the impartiality of the expert witness in the case (B.J.T., para 77).
Given the influence of the Director’s decisions and actions over the state of affairs between the parties and the legal positions of the father and grandmother, it is difficult to see how the PECA considered the Director’s conduct as “an irrelevant factor” that the hearing judge should not have applied (B.J.T., para 43). The hearing judge’s analysis would not have been complete without consideration of the Director’s conduct. The SCC gave a useful example to illustrate this point:
“In a different context, the fact that a parent only saw a child once, for a three-day period, in six months may support a finding of a limited desire to have a close connection with the child. When that fact is attributable to the Director’s decisions, the implications and available inferences change dramatically” (B.J.T., para 72).
The SCC rightly observed that after taking the Director’s decisions and actions into account, the hearing judge was able to understand the context and make informed decisions on claims and evidence advanced by the parties. Therefore, in this case, the significant weight given to the Director’s conduct was appropriate. As deciding custody is a highly contextual matter, a child protection agency’s conduct will not always be as relevant in every case. But courts have to consider it as a potential factor, as omitting it could result in an incomplete analysis of the best interests of the child.
The Natural or Biological Parent Factor
The natural or biological parent factor is a presumption which favours granting custody to the parent that is biologically related to the child. On this issue, the SCC disagreed with the PECA and held that courts are not obligated to consider biological ties as a “decisive tie-breaker” in cases where a biological parent and a non-biological parent are equally suitable parents for the child (B.J.T., para 87). For the SCC, biology is simply one factor among other factors that may be relevant to a child’s best interests (B.J.T., para 87). The SCC also noted that there is no explicit direction in the CPA for courts to consider the child’s biological relationship with a party seeking custody (B.J.T., para 94).
While courts can nevertheless consider biology, as statutory factors are non-exhaustive, the SCC suggested that courts should generally give limited weight to biological ties for several reasons. First, courts may tend to give effect to the parent’s claims to the detriment of the child’s best interests by focusing too much on biology (B.J.T., para 102). Second, the SCC cited King v Low,  1 S.C.R. 87 [King], where the SCC held that a “child’s bond is a consideration that should prevail over the “empty formula” of a biological tie” (B.J.T., para 103, citing King at para 104). Since biological ties are merely a “presumed proxy” for a parent’s bond with the child, any factors that favour the biological parent will “usually be captured and subsumed within the broader inquiry into a child’s best interests” (B.J.T., para 105). Third, the benefit of a biological tie could be “intangible and difficult to articulate” (B.J.T., para 106). Fourth, with changing social conditions, biological ties may become less important “as children are increasingly raised in families where those ties do not define a child’s family relationships” (B.J.T., para 107). Last, courts must be cautious in preferring one biological tie over another without concrete evidence supporting their preferences (B.J.T., para 108).
In this case, because both parties were “parents” under the CPA, and because each had a biological tie to W.D., the SCC held that the hearing judge was entitled to make her decision based on another factor she considered more significant to the case (B.J.T., para 112).
As evident in the SCC’s listed reasons, courts need to tread carefully when considering biological ties. In my opinion, the overarching problem with the biological parent factor is that its utility does not justify its negative aspects. The purpose of considering biological ties is limited: as noted by the SCC, any factors that favour the biological parents will be considered through other statutory factors. For example, in child protection cases, if the biological parent and the child share a close bond, that bond will be considered under the “love, affection and ties” factor listed in the CPA.
In addition to its limited utility, considering biology as a factor presents numerous dangers. As explained by the SCC, the supposed benefit of a biological tie is not only difficult to capture and fairly apply but also may now be outdated. Given the continuing progressive evolution of the family unit, i.e., the definition and expectation of what constitutes a family, the significance of biological ties will likely diminish further. If courts apply the biological parent factor, they must be aware of its limited purpose, shortcomings, and dangers.
In B.J.T., the SCC clarified three key issues in deciding the best interests of the child in child protection cases. Going forward, appellate courts may only overturn decisions of judges of first instance if they can meet the Van de Perre standard – namely, if the judge of first instance made a material error, a serious misapprehension of the evidence, or an error in law. Courts will also be able to consider the conduct of child protection agencies and assign the necessary weight to that factor to decide the best interests of the child. Regarding the biological parent factor, courts are not confined to enforcing biological ties as a decisive tie-breaker in situations where opposing parties are equally capable as parents.
Through its reasons, the SCC freed courts from the PECA’s restrictive guidelines for determining the best interests of the child. The guidelines affirmed by the SCC will allow judges of first instance to fairly and effectively decide child welfare custody cases based on evidence and context and ensure that appellate courts respect the high judicial discretion involved in such decisions.