King v. Low, 1985 CanLII 59 (SCC), [1985] 1 SCR 87
Karen King Appellant;
and
George Low and Barbara Jean Low Respondents.
1984: May 23; 1985: March 14.
Present: Dickson C.J. and Ritchie*, Beetz, McIntyre, Chouinard, Lamer and Wilson JJ.
*Ritchie J. took no part in the judgment.
on appeal from the court of appeal for the northwest territories
Infants ‑‑ Custody ‑‑ Natural mother claiming custody of child after giving him up for adoption ‑‑ Welfare of the child paramount consideration ‑‑ Parens patriae jurisdiction ‑‑ Child’s interests best served by leaving him with adoptive parents ‑‑ Domestic Relations Ordinance, R.O.N.W.T. 1974, c. C‑3, ss. 28(1), 35(2), 37, 39.
Appellant, an unwed mother, fearing parental disapproval, gave her son up for adoption a few days after his birth to a couple carefully chosen by her. Less than three months later, appellant requested the child's return and, when the respondent adoptive parents refused, she revoked her consent to the still incomplete adoption and sought an order restoring him to her custody under s. 28(1) of the Domestic Relations Ordinance. The trial judge dismissed the application pursuant to s. 37(b) of the Ordinance as he found her "unmindful of her parental duties" because of her surrender of the child to the respondents. He then considered the welfare of the child as prescribed by that section, and found that, although both parties could provide the child with satisfactory upbringing, the child's best interests would not be served by returning him to his natural mother. The benefits to the child of maintaining the blood ties to his natural mother were outweighed by those resulting from maintenance of his present home stability and his existing parental bounds to the adoptive parents. The majority of the Court of Appeal upheld the judgment.
Held: The appeal should be dismissed.
This case may be dealt with on the general consideration of the welfare of the child. Indeed, where the governing statute preserves and dictates the application of the rules of equity (s. 39 of the Domestic Relations Ordinance), the Court in exercising its parens patriae jurisdiction 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. This was done by the trial judge and the majority of the Court of Appeal.
The welfare of the child must be decided on a consideration of all relevant factors, including the general psychological, spiritual and emotional welfare of the child. The Court must 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 be seriously considered but must be set aside where the welfare of the child requires it.
Cases Cited
Re Moores and Feldstein (1973), 1973 CanLII 535 (ON CA), 12 R.F.L. 273, applied; Beson v. Director of Child Welfare (Nfld.), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716; Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173; J. v. C., [1970] A.C. 668, considered; Re Baby Duffell: Martin v. Duffell, 1950 CanLII 11 (SCC), [1950] S.C.R. 737; Hepton v. Maat, 1957 CanLII 18 (SCC), [1957] S.C.R. 606; Re Agar; McNeilly v. Agar, 1957 CanLII 22 (SCC), [1958] S.C.R. 52; Re Ezekiel (1980), 1980 CanLII 3245 (NB QB), 30 N.B.R. (2d) 343; Meikle v. Authenac (1970), 1970 CanLII 1109 (AB SCAD), 3 R.F.L. 84, not followed; Re Mugford, 1969 CanLII 34 (ON CA), [1970] 1 O.R. 601, approved 1969 CanLII 137 (SCC), [1970] S.C.R. 261; Re Blenus (1979), 1979 CanLII 4291 (NS SC), 35 N.S.R. (2d) 396; C. v. K. (1959), 1959 CanLII 223 (SK CA), 30 W.W.R. 310; Gerk v. Ventress (1964), 1964 CanLII 727 (AB SCTD), 48 W.W.R. 245; Re Wells (1962), 1962 CanLII 537 (BC CA), 33 D.L.R. (2d) 243; Re Jenkins (1973), 5 Nfld. & P.E.I.R. 325; C.A.C. v. F.D.R. and S.J.R. (1977), 1977 CanLII 3300 (NS CA), 21 N.S.R. (2d) 631; Elias v. Elias (1980), 1980 CanLII 3670 (MB QB), 14 R.F.L. (2d) 228; Nelson v. Findlay and Findlay (1974), 1974 CanLII 234 (AB SCTD), 15 R.F.L. 181; Power v. Crowe (1982), 1982 CanLII 5439 (NS SC), 52 N.S.R. (2d) 165; Hope v. Hope (1854), 43 E.R. 534; Re McGrath, [1893] 1 Ch. 143; Re O’Hara, [1900] 2 I.R. 232, referred to.
Statutes and Regulations Cited
Child Welfare Ordinance, R.O.N.W.T. 1974, c. C‑3, ss. 84, 85.
Domestic Relations Ordinance, R.O.N.W.T. 1974, c. D‑9, ss. 28(1), 35(2), 37, 39.
APPEAL from a judgment of the Northwest Territories Court of Appeal, sub nom. A. v. B., 1983 CanLII 4762 (NWT CA), [1983] N.W.T.R. 1, 148 D.L.R. (3d) 247, 45 A.R. 88, affirming a judgment of the Supreme Court, sub nom. K.K. v. G.L., 1982 CanLII 4954 (NWT SC), [1983] N.W.T.R. 97, dismissing appellant's application for the custody of her child. Appeal dismissed.
James R. Scott and Teresa Bereznicki‑Korol, for the appellant.
B. A. Crane, Q.C., for the respondents.
The judgment of the Court was delivered by
Background
McIntyre J.‑‑This appeal involves a contest over the custody of a child, born out of wedlock, between the appellant mother and the respondents with whom the mother placed the child for adoption a few days after its birth. The Supreme Court of the Northwest Territories at trial, and the Court of Appeal of the Northwest Territories, have resolved the issue in favour of the adoptive parents. The mother's appeal to this Court is by leave granted September 27, 1983.
The mother has until recently resided in the Northwest Territories. She is now about 27 years of age. She went there with her family at the age of 16 and remained when the family moved to Ontario. After finishing high school she completed training as a heavy equipment operator and has apparently had no difficulty in obtaining employment in that field. She has also served from time to time as a child‑care attendant in a receiving home for children in Inuvik, and as well she has been active in child care and in the supervision of recreational youth programs.
When she became pregnant the father of the child quit his job and left the Northwest Territories. He has not shown any interest in the child and there is no prospect of any reconciliation or further involvement in the matter on his part. The mother was accordingly left to cope with the matter alone. She feared parental disapproval. There had been difficulties in the past which made her fear that she would be ostracized by her family. She therefore decided to conceal her pregnancy from them and to place the child for adoption when it was born.
She wished to place the child in a good home and she also wished to preserve at least the possibility of some contact with the child as it grew up. She decided on a private adoption. She considered several possible couples and eventually settled on the respondents as the best choice. The respondents were friends of the mother, and she had become "almost a member" of the family of the female respondent. She was satisfied that the respondents would provide a good home for the child. She knew that the female respondent wanted a child and thought that she was unable to have one of her own. The choice she made‑‑it has been conceded by all parties and found in both courts below‑‑was a good one. The child has had a good home in a stable environment.
The child, John Michael, was born at Yellowknife on April 4, 1982. The respondents arrived in Yellowknife the next day from their home at Hay River. While the mother and child remained in hospital they were visited regularly by the respondents. The female respondent assisted in the care of the baby and she and her husband seemed anxious to have the child, but as well to be sure that the mother was willing to allow them to have him. The appellant left the hospital on April 9, 1982. On that day the child was taken by the respondents with the consent of the mother, which consent she acknowledged was given freely and with full knowledge of what it involved. They left Yellowknife for Hay River and the child has been with the respondents ever since.
The birth of the child aroused in the mother a surge of maternal love and affection for the baby, far exceeding any expectation. She changed her mind about the proposed adoption almost at once. She became reluctant to give up the child, but she had made arrangements with the respondents and she was advised by friends that in the long run adoption would be the best step for her to take. She returned to her home in Inuvik and on April 19, 1982, fifteen days after the birth, she signed a consent to adoption, as required by the Child Welfare Ordinance, R.O.N.W.T. 1974, c. C‑3, ss. 84 and 85.
Instead of coming to accept the loss of her child the mother became depressed. She longed to have the child back. She visited her family in Ontario in the Spring of 1982, but found it impossible to raise the question. She returned to the Northwest Territories and on June 23, 1982 she informed the respondents that she wished the return of her child. She also spoke to her mother and discovered, contrary to her earlier belief, that her mother was willing to support her in the matter and expressed a desire to see and receive the child as her grandchild. The respondents refused to return the child and, as a result, the appellant upon taking legal advice revoked her consent to the adoption and commenced these proceedings. The adoption has not been completed.
The respondents were married on May 14, 1981. The male respondent had been married before and divorced. He and his former wife had adopted a child which is now in the respondents' custody. The female respondent at the time of the proceedings below was pregnant despite the earlier belief that this was impossible. At present then John Michael lives in a home with two other children and the adoptive parents. John Michael's father is of Indian ancestry, as is the adopted son of the earlier marriage of the male respondent. The adoptive mother also is of partly Indian ancestry.
Trial Judgment
The trial judge, de Weerdt J., 1982 CanLII 4954 (NWT SC), [1983] N.W.T.R. 97, found in favour of the respondents. He considered the statutory provisions which are relevant in this case, ss. 28(1), 35(2) and 37 of the Domestic Relations Ordinance, R.O.N.W.T. 1974, c. D‑9, which provide as follows:
(1) Unless otherwise ordered by the Court or a justice, the father and mother of an infant are the joint guardians of their infant, and the mother of an illegitimate infant is the sole guardian of the illegitimate infant.
(1)...
(2) If upon an application made by a parent or other responsible person for an order for the production or custody of an infant the Court is of the opinion that the parent or other responsible person
(a) has abandoned or deserted the infant, or
(b) has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the infant,
the Court may, in its discretion, decline to make the order applied for.
- Where a parent or other responsible person has
(a) abandoned or deserted his infant, or
(b) allowed his infant to be brought up by another person or by a school or institution at the expense of that other person or at the expense of the school or institution for such a length of time and under such circumstances as to satisfy the Court that the parent or other responsible person was unmindful of his parental duties,
the Court shall not make an order for the delivery of the infant to the parent or other responsible person unless the Court is satisfied that an order for the delivery of the infant would be for the welfare of the infant.
He concluded that, since the appellant was the sole guardian of the child in accordance with s. 28(1), her application required consideration of s. 35(2) and s. 37. He did not conclude that the mother had abandoned or deserted the child, nor that she had conducted herself in such manner that the court should refuse to enforce her rights as guardian. He therefore considered that s. 35 was not applicable. He decided, however, that this application came within s. 37(b). He concluded that the mother's decision to give the child to the adoptive parents, because of fear of difficulties with her own family, was motivated by a consideration of her own interests and that she had accordingly been unmindful of her parental duties. Concluding that the welfare of the child could best be served by leaving the child with the adoptive parents, he was then required by s. 37 to refuse custody to the mother.
- He made detailed reference to the facts and found that either of the parties could provide a sound and satisfactory upbringing for the child. He was led to conclude the issue in favour of the adoptive parents, however, by the evidence of bonding between the child and its adoptive parents. He noted that the child from the fifth day of its life had been in the custody and the care of the adoptive parents. The evidence satisfied him that the process of bonding, that is, the formation of a relationship of love and obligation which is essential to the normal development of a child, had commenced and advanced to the point where removal of the child from its home would be a traumatic experience which could adversely affect his health and development. This bonding process had become a factor because of the mother's decision to give up the child. While that decision may have been understandable, it led to the bonding between the child and the adoptive parents. He could not therefore conclude that it was in the child's interests to return the child to the mother.
Court of Appeal
- In the Court of Appeal (Prowse, Moir, McClung JJ.A.), 1983 CanLII 4762 (NWT CA), [1983] N.W.T.R. 1, 148 D.L.R. (3d) 247, 45 A.R. 88, the majority were of the view that there was evidence before the trial judge to support his findings and there was no error in his approach to the problem. They dismissed the appeal. Prowse J.A., dissenting, would have allowed. In his view, the trial judge placed undue emphasis on the question of bonding. He did not consider that it should have a decisive effect on the question of custody.
The Law
The law relating to the custody of children and the rights of parents where custody claims are involved has undergone progressive change since early in the nineteenth century when the parent, usually the father, had a right to custody of an infant child unless disqualified by reason of some serious circumstance, having to do with the welfare of the child, making him unfit to have custody. By legislative intervention and evolving case law the situation has changed. The law has moved, first, toward an increase in maternal rights; a progressive diminution of parental rights; and then, a corresponding increase in the consideration of the interest or welfare of the infant, as the significant factor in custody determination. This latter factor has become progressively more important until it may now be said that the welfare of the child is the paramount consideration when the courts address the problem.
A concise review of the development of the law on this subject may be found in the judgment of Dubin J.A., speaking for the Court of Appeal of Ontario (Kelly, Dubin and Estey JJ.A.) in Re Moores and Feldstein (1973), 1973 CanLII 535 (ON CA), 12 R.F.L. 273. That case arose out of an application by the natural mother, married but not to the child's father, for custody of a four year‑old girl whom she had delivered to the defendants a few days after birth, where the child had remained until the commencement of the application. The trial judge had decided the issue in favour of the natural mother, but Dubin J.A. upon a consideration of earlier authorities (including the cases which have become known in this connection as ‘the trilogy’ : Re Baby Duffell: Martin v. Duffell, 1950 CanLII 11 (SCC), [1950] S.C.R. 737; Hepton v. Maat, 1957 CanLII 18 (SCC), [1957] S.C.R. 606; and Re Agar; McNeilly v. Agar, 1957 CanLII 22 (SCC), [1958] S.C.R. 52) allowed the appeal and put custody with the adoptive parents.
He drew attention, at p. 281, to the broader, and in his opinion, more enlightened view adopted in the Chancery Court, and referred to the words of Lord Cranworth in Hope v. Hope (1854), 43 E.R. 534, at pp. 540‑41, regarding the application by the court of the parens patriae role.
The jurisdiction of this Court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the State and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects.
He then noted that the Court of Chancery with its broader power to do equity placed emphasis on the welfare of the child in determining custody matters, raising it to the level of a paramount consideration to which all others must give way. He approved the words of Lindley L.J. in Re McGrath, [1893] 1 Ch. 143, at p. 148:
The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well‑being. Nor can the ties of affection be disregarded.
He then observed that with the fusion of the common law and the Chancery courts it became the duty of the common law courts to exercise the Chancery jurisdiction. In this, he relied on FitzGibbon L.J. in Re O’Hara, [1900] 2 I.R. 232, at pp. 239‑40. He then observed that, in Ontario, s. 3 of The Infants Act, R.S.O. 1970, c. 222, provided that in matters of custody and the education of infants the rules of equity would prevail. After referring to the trilogy cases, he concluded that in all custody cases, including those involving a contest between a natural parent and a stranger, the welfare of the child concerned would be the dominant consideration which would prevail over all others.
This case has been widely cited and has been the subject of much academic writing, both favouring and rejecting its approach. In Re Moores and Feldstein, Dubin J.A. distinguished the trilogy cases by pointing out that in each case it appeared that the contest had in fact been resolved on the basis of the welfare of the child. This distinction may on the facts of those cases be sustainable, at least to the extent that the welfare of the children, as perceived by the Court, coincided in each case with the common law rule giving a preference to the natural mother in a contest with a stranger; but see the comment of Locke J. in Re Agar; McNeilly v. Agar, supra, pp. 55‑56. However, with the greatest deference to Dubin J.A., it is my view from a perusal of much of what has been written on this subject since Re Moores and Feldstein that the case has been taken to be a turning point in the approach to custody matters, and that the court was there departing from the common law rule, which had been specifically enunciated in the trilogy, that the mother of an illegitimate child was entitled to its custody unless some significant matter concerning the welfare of the child rendered her unfit to have custody.
The position taken in this Court until recently (see Beson v. Director of Child Welfare (Nfld.), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716; and Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173, to be discussed later) has been set out in the trilogy. In custody contests between contending parents the welfare of the child has become the dominant consideration without any initial preference given to either parent. In matters where the parent, usually the mother, was contesting a grant of custody to strangers, that is, non‑parents, the mother's claim had preference unless she was found to be unfit to have custody. This was the basis of the law applied in the trilogy and it was widely followed, save where a statutory provision permitted departure. The judicial reaction to the trilogy, however, in later years has been uneven and the courts have frequently favoured a more liberal application of the parens patriae, or equitable jurisdiction, and have moved away from the strict application of the rule approved in the trilogy.
There have been cases where it was sought to distinguish the trilogy on the basis of legislative changes. An example is to be found in Re Wells (1962), 1962 CanLII 537 (BC CA), 33 D.L.R. (2d) 243, where Wilson J.A., speaking for the British Columbia Court of Appeal (Bird, Tysoe and Wilson JJ.A.), cited a 1957 amendment to the British Columbia adoption legislation preventing revocation of consent to adoption unless shown to be in the best interests of the child. He said, at p. 247:
It appears to me that the Legislature of B.C., by a provision enacted after the decision in Duffell’s case, has achieved just what Cartwright, J., suggested could be done and changed the basis upon which revocation is permitted: that the Legislature has changed the law and placed the contestants, natural and adoptive parents, on a basis of equality in cases where the natural parent has consented to the adoption.
Later, at p. 249, he concluded by saying:
In these circumstances, having regard only to the welfare of the child, and none to maternal rights, I think that the learned trial Judge reached the correct conclusion.
To similar effect are Re Jenkins (1973), 5 Nfld. & P.E.I.R. 325 (Nfld. S.C.), at pp. 332‑33; and C.A.C. v. F.D.R. and S.J.R. (1977), 1977 CanLII 3300 (NS CA), 21 N.S.R. (2d) 631 (C.A.), at pp. 649‑51.
There have been other authorities which have departed from the strict application of the trilogy cases on the basis that the law has evolved to accommodate changing social conditions and attitudes. Foremost in this group, of course, is the Ontario Court of Appeal in Re Moores and Feldstein, supra. There are many cases which have referred to it and in greater or lesser degree approved and followed it: Elias v. Elias (1980), 1980 CanLII 3670 (MB QB), 14 R.F.L. (2d) 228 (Man. Q.B.), at p. 234; Nelson v. Findlay and Findlay (1974), 1974 CanLII 234 (AB SCTD), 15 R.F.L. 181 (Alta. S.C.), at pp. 188‑91; C.A.C. v. F.D.R. and S.J.R., supra, at pp. 646‑50; Power v. Crowe (1982), 1982 CanLII 5439 (NS SC), 52 N.S.R. (2d) 165 (Cty. Ct.), at p. 174.
Not all authorities, however, have followed the trend away from the trilogy cases. See Re Mugford, 1969 CanLII 34 (ON CA), [1970] 1 O.R. 601 (C.A.), approved in this Court, 1969 CanLII 137 (SCC), [1970] S.C.R. 261; Re Blenus (1979), 1979 CanLII 4291 (NS SC), 35 N.S.R. (2d) 396 (T.D.); C. v. K. (1959), 1959 CanLII 223 (SK CA), 30 W.W.R. 310 (Sask. C.A.), at p. 317; Gerk v. Ventress (1964), 1964 CanLII 727 (AB SCTD), 48 W.W.R. 245 (Alta. S.C.), at pp. 248‑49. These cases may be said to be distinguishable from the trilogy on the basis which was adopted by Dubin J.A. in Re Moores and Feldstein, that is, that the welfare of the child in each case was consistent with the trilogy's parental preference. However, more difficulty would be encountered in seeking to distinguish Re Ezekiel (1980), 1980 CanLII 3245 (NB QB), 30 N.B.R. (2d) 343 (Q.B.), and Meikle v. Authenac (1970), 1970 CanLII 1109 (AB SCAD), 3 R.F.L. 84 (Alta. S.C.A.D.). These cases apply the ‘parental preference’ principle from the trilogy.
It seems to me indisputable that there has been a significant move away from reliance upon the parental preference of the common law as expressed in the trilogy. This trend has relied for its justification on the equitable parens patriae jurisdiction of the Court which has elevated the concept of the welfare of the child to the paramount position. Reference in this regard must be made to two recent cases in which this Court exercised the parens patriae jurisdiction: Benson v. Director of Child Welfare (Nfld.), supra, and Racine v. Woods, supra.
In Racine the contest was between the natural mother and the adoptive parents who had custody of the child for some three years without the consent of the natural mother. The narrow issue concerned the ordering of an adoption under s. 103(2) of the Manitoba Child Welfare Act, 1974 (Man.), c. 30, where the adoptive parents had de facto custody for more than three years without the mother's consent. It was argued that the adoptive parents were estopped from asserting a right under s. 103(2) because of their failure to return the child to its mother when asked to do so. Wilson J., speaking for this Court, in dealing with that argument put the case much closer to the case at bar. She said, at p. 184:
With respect, I see nothing "improper" about the Racines proceeding by way of de facto adoption. The statute contemplates it. Moreover, in my view the crucial question is not what a court would have done with an adoption application made in 1978 but what it would have done with a habeas corpus application. Mrs. Woods might have succeeded on such an application in 1978 had she proceeded with it. Her failure to do so permitted her child to develop a dependency on the Racines as her psychological parents. It seems to me that Mrs. Woods had a responsibility when her rights were challenged to pursue them in the court if necessary and not to wait until her child was bonded to the Racines with all the problems for the child that the disruption of that bond was likely to create.
The answer to the crucial question would have been simple if the natural mother had abandoned the child. Wilson J., contrary to the finding of the trial judge on this point, considered that a finding of abandonment was unjustified. Even in the absence of such a finding, Wilson J. considered the decisive factor to be the welfare of the child and she gave much less weight to the consideration of biological ties than did the trilogy of cases decided thirty years earlier. She said, at p. 185:
Be that as it may, I do not think a finding of abandonment was necessary to the trial judge's decision. I think the statute is clear and that s. 103(2) dispenses with parental consent in the case of a de facto adoption. This does not mean, of course, that the child's tie with its natural parent is irrelevant in the making of an order under the section. It is obviously very relevant in a determination as to what is in the child's best interests. But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about. As has been emphasized many times in custody cases, 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. In giving the court power to dispense with the consent of the parent on a de facto adoption the legislature has recognized an aspect of the human condition‑‑that our own self interest sometimes clouds our perception of what is best for those for whom we are responsible. It takes a very high degree of selflessness and maturity‑‑for most of us probably an unattainable degree‑‑for a parent to acknowledge that it might be better for his or her child to be brought up by someone else. The legislature in its wisdom has protected the child against this human frailty in a case where others have stepped into the breach and provided a happy and secure home for the child for a minimum period of three consecutive years. In effect, these persons have assumed the obligations of the natural parents and taken their place. The natural parents' consent in these circumstances is no longer required.
- In the Beson case there was not a contest between a natural mother and adoptive parents, but rather between two sets of adoptive parents prior to the completion of the adoption. The facts in Beson are far indeed from those at bar, but it clearly affords an example of the application by this Court of the parens patriae jurisdiction to override all other considerations in dealing with custody matters.
Analysis
The statutory provisions which are relevant in this case have been set out above. They are s. 28(1), s. 35(2), and s. 37 of the Domestic Relations Ordinance, R.O.N.W.T. 1974, c. D‑9. These were discussed and relied on by the trial judge and the Court of Appeal. In addition, I would draw attention to s. 39 which provides that the rules of equity when they do not conflict with the Ordinance shall prevail in matters relating to the custody of infants. There was little, if any, discussion in the courts below regarding the application of the parens patriae jurisdiction. The trial judge applied the provisions of s. 37(b) and, having found that the mother in surrendering her child to the respondents was unmindful of her parental duties, he considered the welfare of the infant and decided that it would not be best by returning the child to the mother. In this he was supported by the majority of the Court of Appeal.
Because of his finding of unmindfulness of parental duty, the trial judge was precluded from ordering the return of the child to its mother "unless the Court is satisfied that an order for the delivery of the infant would be for the welfare of the infant". He was not so satisfied, as is to be noted from his finding which was expressed in these words:
The benefits to the child of maintaining the blood tie to his natural mother are far outweighed, in my respectful view, by those resulting from maintenance of his present home stability and his existing parental bonds to the adoptive couple.
It is apparent at once that, if one accepts the finding made by the trial judge that the mother was unmindful of her parental duties when she turned the child over to the respondents, the trial judge's determination of the matter could not be disturbed. Section 37 would prevent the making of an order returning the child to the mother. I have had some difficulty with that finding for it would seem to me that the mother, in deciding to part with the child, took careful steps to see that the child would be placed in a good home with adoptive parents who would give the child their love and act in the child's best interests. On the other hand, it cannot be denied on the evidence that the step was taken by the mother because of fear of parental disapproval and as a means of solving her own personal problem. It was, it must not be forgotten, this step which created the problems arising in this case and which placed the child in a home where he would come to see the adoptive parents as his own mother and father, and become dependent on them in the manner of children living in a settled, secure home. I am of the opinion, however, that apart from such finding against the mother, one I would prefer not to make, this case may be dealt with on the general consideration of the welfare of the child.
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.
Application to the Facts
In considering the facts of this case, it should be observed at once that the trial judge found that the adoptive parents, on the one hand, and the mother, on the other, were both capable of providing a satisfactory home for the child. This clearly is not a case where the choice is made easy by clear failure, on one side or the other, to measure up to the required standard. I have read the entire record and it is notable in this case that there is a total absence of the mutual recrimination usually found in such cases. Each party has accepted the proposition that the other can perform the parental duties well, but each seeks custody: the mother because of her love for the child she bore and from whom she has been separated, and the adoptive parents because they have come to look on the child as their own, as a member of their family to whom they have become attached as to their own children.
The mother had a strict upbringing against which she seems to have rebelled. She left the home by remaining in the Northwest Territories when her family moved to Ontario and has demonstrated great character and independence in fending for herself and establishing a solid position within her community. She is highly thought of by friends and associates and, despite the fact that she gave up her child freely and voluntarily, she now exhibits a genuine desire to regain custody and fill the role of mother to her child. She has formed what appears to be a stable domestic relationship with a young man whom she met in May of 1982. They intend to marry. They both appear capable of meeting parental responsibilities and creating a home for the child. Her prospective husband is a mechanical engineer. He has been a substantial earner, has accumulated some savings and is willing and anxious to have the child in his family. They plan to live in Toronto where he works and would create a home there which would include the child if custody is awarded to the mother.
The male respondent grew up in a small town in Manitoba. He has worked at least part‑time since the age of eleven when he commenced to assist his father in a store. Education was always a matter of concern in his family and he has received a good education, having a bachelor of science degree in agriculture. He is presently employed at Hay River, Northwest Territories, as a biologist. He was previously married, but divorced because of his former wife's alcoholism. He and the female respondent have in their care and custody the adopted son of that marriage, in addition to their own child and John Michael. The female respondent has grown up in the area of Inuvik, is well settled and well thought of in her community. She shares with John Michael some Indian ancestry and this factor stands in her favour for one would expect that she will be enabled to understand and deal with problems the child may encounter in this respect. The adoptive parents have established a secure and stable home in which the children, including John Michael, have done well. The independent evidence of the welfare worker, which will be referred to later, is to the effect that the child appears to be well settled and happy in his present environment.
It is evident that the trial judge so approached this question when he said, after noting that the emphasis in the reported cases had shifted to "the best interests of the child" (at p. 105):
That does not mean that the natural mother's interests or desires are to be ignored, or that her natural blood tie with her child is to be considered meaningless. These factors must, of course, be given serious and careful consideration, as I have given to them in the present case. At that, I must give, as I believe I have, some consideration to the mother's apparent dependence on her parents' views regarding the child's legitimacy and, in consequence, his acceptance into the natural mother's wider family circle but, equally, the rejection of the natural mother by her own father over the child's illegitimacy. I must also consider the present uncertainty of the natural mother's own hopes for creation of stable and continuing ties of a domestic nature with her fiancé in Toronto, a place where she is a stranger at this point in time. And I must consider these and all the other circumstances together, including the comparative stability and permanence of the relationship between the adoptive parents (and their 7‑year old son) and the child, the need of the child for continuance of that stability and for consistency in his early rearing, and the importance of avoiding disruption, if possible, in the pattern of the child's life at its present stage of growth and development.
Evidence of Bonding
- Much of the evidence given at trial had to do with the subject of bonding, that is, the creation of a tie between parent and child, essential to the child's development and of great significance even in the very early months of the infant's life. A welfare worker employed by the public health authorities prepared on the court's order a detailed report of the parties and the home of the respondents, and spoke of the observations made, expressing the view that the bonding process was well‑advanced before the trial when the child was only a few months old. A psychiatrist also gave evidence. He stressed the importance of bonding, described its nature, and made reference to reports submitted by the welfare worker and gave his opinion that the author had correctly defined the phenomenon and had observed reactions on the part of the child which were typical of the developing process. He also expressed the opinion that it would be harmful to the child to break the bond thus formed and to place the child in a home which would be strange and foreign and where the mother would be a stranger to him. The trial judge who heard the evidence said (at pp. 103‑04):
On the evidence before me, the child has by now established a strong bond instead with the adoptive parents, who are as a result in relation to the child as if they were its natural parents. This goes beyond the fact that they love and care for the child and have done so almost since the day of its birth. It goes to the very roots of the child's experience of its world since that time. It would be extremely traumatic for the child now to be uprooted from its present parental home and to be returned to a stranger to it, even if that stranger is its natural mother. Though lawful, such an uprooting would do serious and perhaps permanent psychological damage to the child, for it would be destructive of the truly close human bonds which it now has and would impair its prospects of functioning as a healthy human being as it grows older.
The law gives rights to the natural parents of a child in order that such very important and natural bonding may be protected and fostered, in the best interests of the child. The court recognizes those rights on that basis and for that purpose. But where, as in the present case, such bonding does not exist between the natural parent and child, having instead developed between the child and other parent figures, the court must perforce give recognition to the facts of the case accordingly. To do otherwise would be to substitute an empty formula for the substance which the law must embody and express.
On the facts of the present case, as the evidence plainly reveals, the child has been brought up by the adoptive parents almost since the day of its birth. The mother was able to see it and care for it during the five days they both stayed in the hospital, but (in spite of her growing misgivings) she gave up the child as a planned and deliberate choice. She later signed and delivered a formal consent to adoption of the child, in the usual written form, and she does not deny that she did so freely and knowing fully what she was doing. The adoptive parents were also with the child during its days in the hospital and they have had the child ever since, awaiting the day when the court would grant them its adoption. The adoptive parents have been the sole support of the child during the 7½ months of its life. These facts go a long way to establish the position of the adoptive parents in the present application, having reference to s. 35 and s. 37 of the Domestic Relations Ordinance, which are quoted above.
- The majority of the Court of Appeal considered that there was evidence upon which a finding in favour of the adopting parents could properly be made and dismissed the mother's appeal. In this they were, in my opinion, right, and I would not disturb their disposition of the matter.
Conclusion
- 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. This was done by the trial judge and the majority of the Court of Appeal. They reached, in my view, the right result, and I would dismiss the appeal. The respondents are entitled to their costs.
Appeal dismissed with costs.
Solicitors for the appellant: Scott & Associates, Edmonton.
Solicitors for the respondents: Boyd & Tancock, Yellowknife.
