Supreme Court of Canada **SUPREME COURT OF CANADA** Appeal Heard: December 1 and 2, 2021

Judgment Rendered: December 2, 2021 Reasons for Judgment: June 3, 2022 Docket: 39558 Between: B.J.T. Appellant and J.D. Respondent — and — Director of Child Protection for the Province of Prince Edward Island and LGBT Family Coalition Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. Reasons for Judgment: (paras. 1 to 114) Martin J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Kasirer and Jamal JJ. concurring) --- ## Parties B.J.T. Appellant v. J.D. Respondent and Director of Child Protection for the Province of Prince Edward Island and LGBT Family Coalition Interveners Indexed as: B.J.T. v. J.D. 2022 SCC 24 File No.: 39558. Appeal heard: December 1, 2, 2021. Judgment rendered: December 2, 2021. Reasons delivered: June 3, 2022. Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for prince edward island --- ## Subject Matter Family law — Child protection — Custody — Best interests of child — Standard of appellate review for disposition decisions pursuant to child protection legislation — Child found in need of protection from mother — Maternal grandmother and father submitting competing parenting plans at disposition hearing — Custody of child awarded to grandmother — Father successfully appealing order — Whether appellate intervention was warranted — Whether hearing judge erred in determination of child's best interests — Whether natural or biological parent factor should be considered in determination of best interests of child — Child Protection Act, R.S.P.E.I. 1988, c. C‑5.1, s. 2(2). --- ## Summary In January 2018, a four‑year‑old child was apprehended by the Director of Child Protection in Prince Edward Island ("Director"), giving rise to lengthy child protection proceedings. The child's parents had a turbulent relationship. They were married in May 2012 and then lived together in Alberta. In 2013, the mother left the father and moved to Prince Edward Island after an alleged incident of domestic violence. At the time, the father was unaware that the mother was pregnant. The mother struggled to care for the child after he was born in October 2013, as she battled significant mental health challenges. When the child was three months old, the maternal grandmother arrived in Prince Edward Island and, for approximately two years, lived with the child and the mother, supported them financially and provided daily care to the child. The grandmother left for approximately one year and then returned to Prince Edward Island in March 2017 and resumed her role as the child's caregiver. This arrangement ended abruptly in August 2017 when the mother's condition worsened and she refused to allow the grandmother to contact the child. A few months later the child was apprehended by the Director. A court found the child was in need of protection, and the Director was granted temporary custody of the child. After the child was placed in the Director's temporary custody, the Director 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 in February 2019 and advised that he had a child. He wanted the child to live with him in Alberta and began to prepare for parenthood. He retained the services of an expert psychologist and flew to Prince Edward Island to meet the child in June 2019, where daily and then unsupervised visits were allowed by the Director. Shortly before his visit, the grandmother informed the Director about allegations of violence by the father. The Director continued to allow the father to visit the child and amended its application to support the father's bid for permanent custody. During the father's visit, the grandmother filed a motion for an order designating her a "parent" under the Child Protection Act, which was granted in early July. The next day, the Director ended the foster parenting arrangement with the grandmother and removed the child from her care, placing him with foster parents. Four weeks later, the Director sent the child to Alberta for a second visit with the father. The Director then decided to make the visit indefinite. The grandmother and the father both sought permanent custody of the child. At a disposition hearing in Prince Edward Island, it was concluded that it was in the child's best interests to be placed with the grandmother. The hearing judge found that the grandmother would promote the child's relationship with the father and his family, but the father would not ensure the child would have a meaningful relationship with his family in Prince Edward Island unless ordered by the court. The hearing judge also found the Director's goal was to assist the father to become the child's parent without considering the possibility of the grandmother as the child's guardian. A majority of the Court of Appeal reversed this decision and granted custody to the father. It concluded that the hearing judge considered an irrelevant factor, being the Director's conduct, and failed to consider the father's argument that as a natural parent, his custody claim should be favoured. Held: The appeal should be allowed and the order of the hearing judge restored. The Court's decision in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, governs as the applicable standard of review when assessing a hearing judge's conclusions concerning custody in a child welfare context. The guiding principle and paramount consideration in custody matters is the best interests of the child, as it is under s. 2(2) of the Child Protection Act. In this legislation, as in others, no priority is given to one factor over the other. The question of which factors are relevant, and what weight should be apportioned to them, is a matter of judicial discretion with regard to the evidence before the court. As a result, an appellate court must act with restraint when reviewing a hearing judge's conclusions concerning custody in a child welfare context and may 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 of which custody arrangement is preferable 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. Nothing in s. 2(2) of the Child Protection Act supports or suggests a different standard of appellate review. In the instant case, in awarding permanent custody to the father, the majority of the Court of Appeal 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 grounded in a thorough assessment of the extensive evidence in the proceedings. In light of the evidentiary record, the hearing judge conducted an assessment that disclosed no material error, serious misapprehension of the evidence, or legal error. The hearing judge's consideration of the Director's conduct did not inappropriately taint her analysis. No general principle prevents a judge on a best interests of the child analysis from considering the actions of a child protection agency. Such inquiries are not only permissible, they may in some circumstances be required on account of the court's essential oversight role in child welfare matters and its parens patriae jurisdiction. A judge has the authority to address how the child protection agency's decisions may have serious implications in the best interests analysis. An agency's conduct may have shaped, even defined, the factual matrix before the court, including the parties' positions and conduct and the status quo relevant to a child's best interests. A court is entitled to look behind the veil of an existing status quo to understand how it came about and to assess whether that status quo is itself in the child's best interests. Faced with representations from a child protection agency regarding the fitness of parents, a court should not be prohibited from considering the manner in which the agency investigated and treated the parties involved to assess the weight that can be placed on such evidence or arguments. In the present case, after the initial apprehension, the Director directed every aspect of the child's life: where and with whom he lived, where he went to school, and who could see him when and the terms of their access. It was, therefore, not a legal error for the hearing judge to consider the Director's conduct insofar as it allowed her to gain an understanding of what had happened, how a certain status quo was created, and the conduct and position of the parties. It was open to the hearing judge to take into account the different treatment provided to the father and the grandmother and to conclude that the Director promoted the child's relationship with his father over the pre‑existing connection with the grandmother. The hearing judge was also allowed to consider how any unbalanced facilitation of access the Director gave to each parent would have had an impact on their bond with the child. The hearing judge could also turn to the Director's evidence and conduct to allow her to properly assess (1) the claims made by the father and the grandmother as to their appetite and ability to facilitate access with the other parent, and (2) the impartiality of the expert witness and the weight to be given to her evidence. The hearing judge was obliged to consider the objectivity and impartiality of the expert opinion evidence to ascertain both its threshold admissibility and the weight that should ultimately be ascribed to it. The hearing judge was well within her authority to conclude that while the expert psychologist's evidence was probative insofar as it spoke to the father's parenting abilities, her evidence merited less weight when she opined on the child's ultimate placement. The hearing judge committed no reviewable error and was entitled to determine the weight to be given the expert's opinion. Furthermore, the hearing judge made no error in her approach to the father's biological tie to the child. While it is not an error for a court to consider a biological tie in itself in evaluating a child's best interests, a biological tie should generally carry minimal weight in the assessment. A parent's mere biological tie is simply one factor among many that may be relevant to a child's best interests and judges are not obliged to treat biology as a tie‑breaker when two prospective custodial parents are otherwise equal. Placing too great an emphasis on a biological tie may lead some decision makers to give effect to the biological parent's claim over the child's best interests and parental preferences should not usurp the focus on the child's interests. A child's bond is a consideration that should prevail over the "empty formula" of a biological tie. A biological connection is no guarantee against harm to a child and 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. In addition, the benefit of a biological tie itself may be intangible and difficult to articulate, which makes it difficult to prioritize it over other best interests factors that are more concrete. The importance of a biological tie may also diminish as children are increasingly raised in families where those ties do not define a child's family relationships. Further, courts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child. In the instant case, none of the enumerated factors in s. 2(2) of the Child Protection Act specifically relate to a parent's biological tie; therefore, a court is not directed to consider a child's biological relationship with the party seeking custody. The Court of Appeal overstated the importance of the father's biological tie to the child. The hearing judge was not compelled to decide in favour of the father after concluding the two parties were more or less equal. It was open to her to dispose of the case based on a factor that she considered more significant: the question of which parent was more likely to maintain the child's relationship with the other parent. --- ## Cases Cited Applied: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 Considered: King v. Low, [1985] 1 S.C.R. 87 Referred to: Hickey v. Hickey, [1999] 2 S.C.R. 518; Gordon v. Goertz, [1996] 2 S.C.R. 27; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R 519; Beson v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398; Thomson v. Thomson, [1994] 3 S.C.R. 551; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; The Queen v. Lupien, [1970] S.C.R. 263; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; Re Baby Duffell: Martin v. Duffell, [1950] S.C.R. 737; Hepton v. Maat, [1957] S.C.R. 606; Re Agar; McNeilly v. Agar, [1958] S.C.R. 52; Young v. Young, [1993] 4 S.C.R. 3; Frame v. Smith, [1987] 2 S.C.R. 99; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; Racine v. Woods, [1983] 2 S.C.R. 173; British Columbia Birth Registration No. 99‑00733, Re, 2000 BCCA 109, 73 B.C.L.R. (3d) 22. --- ## Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 7. Child Protection Act, R.S.P.E.I. 1988, c. C‑5.1, ss. 1(s), 2(2), 27, 29, 30, 36, 37, 38(2)(c), (d), (e), 41. Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C‑12, s. 2(1). Children's Law Act, R.S.P.E.I. 1988, c C‑6.1, s. 33. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(3). Family Law Act, S.A. 2003, c. F‑4.5, s. 18. --- ## Authors Cited Bala, Nicholas, and Jane Thomson. Expert Evidence and Assessments in Child Welfare Cases, Queen's Law Research Paper Series No. 63. Kingston: Queen's University, 2015. Bala, Nicholas. "Bringing Canada's Divorce Act into the New Millennium: Enacting a Child‑Focused Parenting Law" (2015), 40 Queen's L.J. 425. Schlosser, M. Joyce. "Third Party Child‑Centred Disputes: Parental Rights v. Best Interests of the Child" (1984), 22 Alb. L. Rev. 394. Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014. Wilton, Ann, Gary S. Joseph and Tara Train. Parenting Law and Practice in Canada, vol. 1. Toronto: Thomson‑Reuters, 1992 (loose‑leaf updated April 2022, release 2). --- ## Appeal APPEAL from a judgment of the Prince Edward Island Court of Appeal (Jenkins C.J.P.E.I. and Murphy and Mitchell JJ.A.), 2020 PECA 14, [2020] P.E.I.J. No. 48 (QL), 2020 CarswellPEI 73 (WL), setting aside a decision of Key J., 2020 PESC 23, [2020] P.E.I.J. No. 25 (QL), 2020 CarswellPEI 44 (WL). Appeal allowed. Ryan Moss and Christiana Tweedy, for the appellant. Jonathan Coady, Q.C., and Sophie MacDonald, Q.C., for the respondent. Mitchell M. O'Shea, for the intervener the Director of Child Protection for the Province of Prince Edward Island. Laura Cárdenas, for the intervener LGBT Family Coalition. --- ## Reasons for Judgment The reasons for judgment of the Court were delivered by Martin J. — ### I. Introduction [1] This appeal concerns a custody dispute over a child who was apprehended at the age of four by the Director of Child Protection in Prince Edward Island ("Director").[^1] At the disposition hearing under s. 37 of the Child Protection Act, R.S.P.E.I. 1988, c. C-5.1, which occurred when the child was six, both his father in Alberta and his maternal grandmother in Prince Edward Island sought permanent custody. The hearing judge concluded that it was in the boy's best interests to be placed with his grandmother, who had cared for him extensively throughout his life. A majority of the Court of Appeal reversed this decision and granted custody to the father, who had only learned he had a child when the boy was five years old and had only recently begun to have a relationship with him. [2] At the conclusion of the appeal, we unanimously allowed the appeal. We set aside the decision of the Court of Appeal and restored the order of the hearing judge awarding the permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the Child Protection Act. Under the terms of the hearing judge's final disposition, the grandmother was immediately entitled to the custody and guardianship of the child in P.E.I., and the Director was required to return him to the grandmother within two weeks of the decision. However, with the school year under way, to mitigate the foreseeable disruption and stress to the child, the Court permitted him to remain with the father in Alberta until March 21, 2022, which marked the commencement of the Alberta spring break. Thereafter, the child was to be returned to P.E.I. at the expense of the Director. [3] This judgment was made without prejudice to any rights that either party may have to make an application to the Supreme Court of Prince Edward Island relating to all questions of custody and access. [4] Below, I provide the reasons for this Court's judgment, explaining why the hearing judge made no legal errors that warranted appellate intervention and why that initial decision was entitled to deference. --- ### II. Factual Background [5] This appeal has a long, complicated history. [6] At the time the appeal was heard, W.D. was an eight-year-old child with high functioning autism. Those who know him report he is bright, energetic, loving, and very good with numbers. Since his diagnosis, he has received a variety of professional supports for his needs, including speech language pathology and occupational therapy services. [7] W.D.'s mother and father (the respondent) met in June 2011, were married in May 2012, and lived together in Calgary, Alberta, with W.D.'s half-brother, who is the mother's child with a previous partner. The appellant, W.D.'s grandmother, also resided in Calgary and before the mother and father moved into their own home, they and the half-brother lived with her. [8] By all accounts, W.D.'s mother and father had a turbulent relationship. The father was arrested three times for violence and threats against the mother and entered into two peace bonds. The father testified that the relationship was "rocky", blamed the mother for that, and denied he was ever violent towards her. [9] The grandmother testified that in March 2013, W.D.'s mother arrived at her home with significant injuries and reported that W.D.'s father had beaten her. This incident not only contributed to the end of the mother and father's relationship, it led to W.D.'s half-brother being removed from the mother's care by child welfare authorities in Alberta and placed in the sole custody of his father in P.E.I. The mother left W.D.'s father and followed the half-brother to P.E.I. shortly afterwards. The mother and father finalized their divorce in 2014. [10] W.D. was born in P.E.I. in October 2013. When W.D.'s mother left for P.E.I., W.D.'s father was unaware she was pregnant. He did not learn he had a son until the Director contacted him in the context of these proceedings in February 2019. W.D.'s half-brother continues to reside in P.E.I. and has maintained a close relationship with W.D. since his birth. [11] The mother struggled to care for W.D. because of significant mental health challenges. When W.D. was three months old, the grandmother arrived in P.E.I. For approximately two years, she lived with W.D. and the mother, supported them financially, and provided daily care to W.D. The grandmother had a close relationship with W.D. and referred to him as her "little boy". [12] The grandmother left for approximately one year and returned to P.E.I. in March 2017. She resumed her role as W.D.'s caregiver. The grandmother and W.D. lived together with the mother. This arrangement ended abruptly in August 2017 when the mother's condition worsened and she refused to allow the grandmother to have contact with W.D. [13] A few months later, W.D. was apprehended by the Director in January 2018. A court found W.D. was in need of protection, and the Director was granted temporary custody. [14] After W.D. was placed in the Director's temporary custody, the Director entered into a foster parenting agreement with the grandmother and placed W.D. in her day‑to‑day care. W.D. lived with the grandmother from April 2018 to July 2019. The Director supervised the grandmother's care and found W.D.'s needs were being met. The Director gave the grandmother and W.D. some limitations on her caregiving role: she was required to report to a Director's worker, and the Director would not allow her to "advocate" for herself as a prospective custodian for W.D. [15] The Director contacted the father in February 2019 and advised him that he had a child. Conversations between the Director and the father reflect that the Director immediately encouraged the father to seek custody of W.D. The Director provided the father with extensive resources, including assistance in locating an expert psychologist, Dr. Smiley, whose services the father retained privately. The Director also assisted the father in facilitating access in P.E.I. and informed him of W.D.'s presence at school and recreational activities in the community. [16] The father prepared for parenthood. He flew to P.E.I. to meet W.D. for the first time in June 2019 where daily and then unsupervised visits were allowed by the Director. [17] Shortly before the father's visit, the grandmother informed the Director about allegations of violence by the father. The Director continued to allow the father to visit W.D. and the Director's amended application supported the father's bid for custody of W.D. [18] During the father's visit in June/July 2019, the grandmother filed a motion for an order designating her a "parent" under the Child Protection Act. The order was granted on July 3, 2019, by Matheson J. of the P.E.I. Supreme Court. The next day, on July 4, 2019, the Director ended the foster parenting arrangement with the grandmother and removed W.D. from her care, placing him with foster parents. Four weeks later, on August 7, 2019, the Director sent W.D. to Alberta for a second visit with the father. The Director then decided to make the visit indefinite. [19] At this point, the Director had the benefit of Dr. Smiley's report and a recommendation from its own social worker that W.D. should be returned to P.E.I. for a hearing. Notwithstanding this advice, the Director retained Dr. Smiley to conduct a second assessment of the father and W.D. and allowed W.D. to remain in Alberta pending the outcome of that assessment. [20] Between August 2019 and the hearing in January 2020, the father controlled access between W.D. and the grandmother. This access was constrained. In contrast, the Director allowed the father unlimited, unmonitored access to W.D. [21] Before the disposition hearing, the Director had Dr. Smiley conduct a third assessment that focused on whether the father would allow W.D. to maintain his relationship with the grandmother. Dr. Smiley found that the father was committed to ensuring W.D. would have a relationship with his grandmother. The Director provided the grandmother's counsel with this report only two business days before the hearing. [22] The disposition hearing took place over four days in January 2020. The hearing judge heard evidence from nine witnesses, which included protection and access workers from P.E.I. and Alberta, the father, the mother of W.D.'s father, Dr. Smiley, the grandmother, W.D.'s half-brother and the half-brother's father. At the conclusion of the hearing, the Director abandoned its support for the father's plan and took no formal position on permanent custody. [23] The hearing judge awarded permanent custody to the grandmother. The Director and the father appealed. A majority of the P.E.I. Court of Appeal allowed the appeal and awarded custody to the father. The grandmother appeals to this Court. --- ### III. Decisions Below #### A. Disposition Hearing (Key J., 2020 PESC 23) [24] The hearing judge noted that the Director had over-held W.D. beyond the permitted statutory timelines without returning to court and that "[t]here appear[ed] to be no consideration by the Director of the possibility of the grandmother as [W.D.'s] guardian" (para. 113). She found that the Director's goal had been "to assist [the father] to become a parent" (para. 113). The hearing judge observed that the Director had facilitated "daily, almost unrestricted, unsupervised access for [the father] while denying [the grandmother] any unrestricted access and severely limiting her access in a variety of ways" (para. 113). She found that the Director's goal was "to tip the scales in [the father's] favour" (para. 113). [25] The hearing judge considered the following factors, among others, in her best interests analysis: W.D.'s physical, emotional, social, and educational needs; the capacity of each party to provide for those needs; the nature and quality of W.D.'s relationships with each party; the love and affection for and personal ties to W.D.; the stability and length of the relationship between W.D. and each party; and the ability and willingness of each party to facilitate W.D.'s relationships with others. [26] In her assessment of the expert evidence, the hearing judge acknowledged that Dr. Smiley had done the "lion's share of assessing [the father's] ability to parent" (para. 109). She found that Dr. Smiley's involvement with the father may have "clouded her view" (para. 109) that W.D. would equally benefit from an alternative arrangement. As a result, the hearing judge gave limited weight to Dr. Smiley's evidence regarding the placement decision. [27] In comparing the grandmother's and the father's abilities to promote and facilitate access with the other party, the hearing judge found that the grandmother would ensure W.D. would maintain a relationship with his father. However, she found the father would not ensure W.D. would maintain a meaningful relationship with his family in P.E.I. unless ordered by the court. This finding was based on the father's conduct in limiting access to the grandmother during his time with W.D. in Alberta, the father's minimizing the grandmother's relationship with W.D. and his testimony about limiting the grandmother's access in the future. [28] The hearing judge concluded that it was in W.D.'s best interests to be placed in his grandmother's care. She was satisfied that the grandmother would promote W.D.'s relationship with the father and his family and that she would provide a stable home for W.D. in P.E.I. where he could maintain his relationship with his half-brother and continue visits with his mother. [29] The hearing judge rejected the "natural parent" factor advanced by the father's counsel. She acknowledged that she was aware the father was W.D.'s biological father and aware of his developing bond with W.D. The father's submissions on the natural parent factor ignored key considerations, including: W.D.'s strong bond with his grandmother, the grandmother's status as a parent, and the hearing judge's finding that the grandmother was more likely to maintain W.D.'s relationship with the father than vice versa. The hearing judge concluded all things were not equal in this case: the grandmother would promote W.D.'s other familial bonds, whereas the father would not without a court order. This conclusion was "her call to make" (para. 203). --- #### B. Court of Appeal (2020 PECA 14) [30] A majority of the Court of Appeal (Jenkins C.J.P.E.I. and Murphy J.A.) held that the hearing judge considered an irrelevant factor, namely, the Director's conduct, and had failed to give adequate weight to the father's status as W.D.'s natural parent. The majority awarded custody to the father. [31] Pursuant to s. 37, the father and the grandmother filed plans of care. W.D.'s mother refused to participate and the amicus curiae was unable to elicit a plan that she might wish to advance. The father filed a plan to have W.D. remain in Alberta and sought "full and sole custody" (para. 145). The grandmother proposed a plan whereby she would "continue to do for W.D. what she has always done, namely, provide him with a loving home and all of the resources which he had prior to being taken away from her" (para. 191). She sought to have W.D. returned to P.E.I., where he could maintain his relationship with his half-brother and continue visits with his mother. [32] While acknowledging that there were concerns around the grandmother's "negative messaging", the Director submitted that there were no protection concerns regarding either parent. The Director abandoned its previous endorsement of the father's plan and took no formal position on permanent custody. Despite this asserted position, the hearing judge found that the Director made a series of decisions in an attempt to "tip the scales" in the father's favour. [33] Although the apprehension of W.D. by the Director meant that the proceedings were governed by the Child Protection Act, what was placed before the court was a "disguised" custody battle (para. 11). The hearing judge recognized that the sole issue was whether W.D.'s best interests favoured permanent custody with his father or his grandmother. The hearing judge awarded custody to the grandmother. [34] The hearing judge premised her analysis on an extensive review of the evidence from nine witnesses, which included protection and access workers from P.E.I. and Alberta, the father, the mother of W.D.'s father, the psychologist, the grandmother, W.D.'s half-brother and the half-brother's father. She summarized the evidence of each witness on a per witness basis and made express findings about their credibility and reliability and explained the weight she assigned to their evidence. [35] In regards to the expert evidence of the psychologist, the hearing judge accepted her evidence about the father's parenting abilities, finding that it gave the court "some comfort" (para. 109). However, the hearing judge gave limited weight to the psychologist's opinion about what placement was in W.D.'s best interests, the ultimate issue the hearing judge was to decide. The hearing judge observed that the expert's involvement with the father may have "clouded her view" that W.D. would equally benefit from an alternative arrangement. [36] The hearing judge found that the grandmother would promote W.D.'s other familial bonds, whereas the father would not without a court order. She concluded it was in W.D.'s best interests to be placed in his grandmother's care. [37] Mitchell J.A. (dissenting) would have dismissed the appeal and upheld the disposition order of Key J. He reasoned that Key J.'s consideration of the Director's conduct was not only permissible, but was also required as part of the court's essential oversight role of child welfare agencies. He also found no error in the hearing judge's analysis of the biological parent factor. --- ### IV. Issues [50] Based on how the case was argued, three issues emerge for consideration: 1. 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? 2. Did the hearing judge err in her determination of the child's best interests in the case at bar? 3. How does the natural or biological parent factor weigh in determining the best interests of a child in a child protection matter? --- ### V. Analysis [51] I answer each issue in turn and conclude that significant deference is owed to a judge's determination of which custody arrangement is preferable in light of a child's best interests. Appellate intervention is only warranted where a judge makes a material error, a serious misapprehension of the evidence, or an error in law. This standard was not met in this case. The hearing judge did not err in concluding that it was in W.D.'s best interests to be placed in his grandmother's custody. Her analysis was free of legal error and consideration of the Director's conduct did not inappropriately taint the analysis. Nor did the hearing judge err in failing to give weight to the father's status as W.D.'s biological parent. These were her decisions to make. In awarding permanent custody to W.D.'s father, the majority of the Court of Appeal failed to afford the appropriate level of deference to the hearing judge's assessment. --- #### A. The Standard of Review on a Determination of the Best Interests of the Child [52] First and foremost, this appeal turns on the due operation of appellate deference in child custody matters. The parties argued about what the applicable standard of review should be when assessing a hearing judge's conclusions concerning custody in a child welfare context. [53] The applicable standard of review for custody decisions in a child welfare context is not an open question. This Court addressed it directly in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13, where Bastarache J. wrote that appellate courts "must act with restraint" and may only intervene in the determination of the best interests of the child "where there has been a material error, a serious misapprehension of the evidence, or an error in law". [54] The guiding principle and paramount consideration in custody matters is the best interests of the child, as it is under s. 2(2) of the Child Protection Act. In this legislation, as in others, no priority is given to one factor over the other. The question of which factors are relevant, and what weight should be apportioned to them, is a matter of judicial discretion with regard to the evidence before the court. [55] As a result, an appellate court must act with restraint when reviewing a hearing judge's conclusions concerning custody in a child welfare context and may 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 of which custody arrangement is preferable 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. [56] Nothing in s. 2(2) of the Child Protection Act supports or suggests a different standard of appellate review. [57] In the instant case, in awarding permanent custody to the father, the majority of the Court of Appeal 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 grounded in a thorough assessment of the extensive evidence in the proceedings. In light of the evidentiary record, the hearing judge conducted an assessment that disclosed no material error, serious misapprehension of the evidence, or legal error. --- #### B. The Hearing Judge's Determination of W.D.'s Best Interests [58] I turn now to assess the two sub-issues under this heading: (1) whether the hearing judge's consideration of the Director's conduct was a legal error that tainted her analysis; and (2) whether the hearing judge erred in limiting the weight she gave to the expert psychologist's evidence. --- ##### (1) The Director's Conduct [59] The majority of the Court of Appeal found that the hearing judge's extensive consideration of the Director's conduct constituted legal error because it "infected" or "tainted" her analysis and led her to focus on an irrelevant factor. I disagree. [60] The Director's conduct was a permissible factor for the hearing judge to consider. No general principle prevents a judge on a best interests of the child analysis from considering the actions of a child protection agency. Such inquiries are not only permissible, they may in some circumstances be required on account of the court's essential oversight role in child welfare matters and its parens patriae jurisdiction. [61] A judge has the authority to address how the child protection agency's decisions may have serious implications in the best interests analysis. An agency's conduct may have shaped, even defined, the factual matrix before the court, including the parties' positions and conduct and the status quo relevant to a child's best interests. [62] A court is entitled to look behind the veil of an existing status quo to understand how it came about and to assess whether that status quo is itself in the child's best interests. Faced with representations from a child protection agency regarding the fitness of parents, a court should not be prohibited from considering the manner in which the agency investigated and treated the parties involved to assess the weight that can be placed on such evidence or arguments. [63] In the present case, after the initial apprehension, the Director directed every aspect of the child's life: where and with whom he lived, where he went to school, and who could see him when and the terms of their access. It was, therefore, not a legal error for the hearing judge to consider the Director's conduct insofar as it allowed her to gain an understanding of what had happened, how a certain status quo was created, and the conduct and position of the parties. [64] It was open to the hearing judge to take into account the different treatment provided to the father and the grandmother and to conclude that the Director promoted the child's relationship with his father over the pre‑existing connection with the grandmother. The hearing judge was also allowed to consider how any unbalanced facilitation of access the Director gave to each parent would have had an impact on their bond with the child. [65] Child protection legislation provides courts with important tools to supervise the exercise of an agency's power (e.g., the Child Protection Act, ss. 27 and 29). This important role, with its attendant checks and balances, is exercised throughout the proceedings. Hence, even in the assessment of a child's best interests, an agency's decision-making process remains the proper subject of inquiry as part of the court's oversight role. Similarly, the jurisdiction under parens patriae to act in the best interests of a child gives ambit to a superior court to take due notice of an agency's conduct insofar as it impacts a child's best interests. [66] The hearing judge therefore committed no reviewable error by noting that the Director had over-held W.D. and breached the timeline prescribed under s. 41 of the Child Protection Act. As Matheson J. noted in a separate contempt hearing in this matter"[w]hen a child is placed in the care and custody of the Director by a court, this care and custody is always under the supervision of the court" (2019 PESC 53, at para. 37). As Matheson J. found, by July 16, 2019, the Director had exhausted the timelines under s. 41, and lacked the jurisdiction to hold W.D., direct his care, or transfer him to Alberta, without returning to court to seek a further period of apprehension. [67] While judges must not lose sight of the child's best interests, they should also not fear appellate intervention for exercising their supervisory functions by referring to or reviewing a child protection agency's conduct. Provided the focus remains on the applicable legal principles, it is in everyone's best interest that the checks and balances established in child welfare legislation are front of mind for all decision makers, including judges undertaking a best interests analysis. --- ##### (2) The Director's Conduct Situated the Status Quo and the Director's Position [68] In addition to the supervisory function of the courts, a child protection agency's conduct can provide crucial context for understanding the status quo and the position taken by the agency in the proceedings. ###### (a) Situating the Status Quo [69] Courts routinely consider the circumstances giving rise to the status quo in custody matters. A court is entitled to look behind the veil of an existing status quo to understand how it came about and to assess whether that status quo is itself in the child's best interests. [70] In this case, the status quo at the time of the hearing was that W.D. had been living with the father in Alberta for over a year. This was not a natural development of an established father-child relationship, but a situation entirely created by the Director. After it removed W.D. from the grandmother's foster care in July 2019, the Director sent W.D. to Alberta and allowed him to remain with the father indefinitely. It was open to the hearing judge to inquire into how this status quo came about and to attribute the appropriate weight to it in the best interests analysis. [71] More broadly, the Director's conduct was not merely an irrelevant backdrop in this case — it was central to understanding the factual context. After the initial apprehension, the Director directed every aspect of W.D.'s life. It decided where he lived, with whom, where he attended school, and who could see him, when, and on what terms. The Director shaped the relationships between W.D. and both the father and the grandmother, to their advancement or detriment. To properly assess what was in W.D.'s best interests at the time of the hearing, the hearing judge had to understand what had brought about the circumstances she was asked to assess. The Director's conduct was inextricably part of the factual matrix. [72] The hearing judge was thus entitled to consider the Director's actions to properly situate the status quo; the relationship bonds that existed between W.D. and each party; and the Director's role in creating those bonds, or inhibiting their development. These were all relevant to the ultimate question of W.D.'s best interests. --- ###### (b) Assessing the Director's Credibility and its Position at the Hearing [73] The hearing judge could also legitimately examine the Director's conduct to assess the weight to give the Director's own evidence and position at the hearing. The Director took an inconsistent position during these proceedings. While the Director had initially supported the father's bid for custody and took active steps to advance his case, by the time of the hearing, the Director abandoned its support for the father's plan and took no formal position on permanent custody. [74] While the majority of the Court of Appeal criticized the hearing judge for referring to the Director's conduct, that conduct was directly relevant to assessing what weight, if any, to give to the Director's position at the hearing. The hearing judge was entitled to probe the Director's conduct to assess the reliability and consistency of its assessments throughout these proceedings. --- ###### (c) The Grandmother's "Negative Messaging" [75] The grandmother's conduct was also assessed in light of the Director's conduct. The majority of the Court of Appeal found that the hearing judge placed insufficient weight on the grandmother's "negative messaging" about the father. [76] The hearing judge considered the Director's treatment of the grandmother and the father in assessing the evidence regarding the grandmother's "negative messaging". She found that the father and the grandmother had different experiences with the Director. While the Director provided the father with extensive resources and supports, the Director permitted the grandmother less latitude in a variety of ways: it did not allow her to advocate for herself as a potential permanent caregiver; it did not inform her of important developments in the child protection proceedings; it required her to submit to a probationary process; and it limited her access to W.D. in a variety of ways. [77] The hearing judge found it was "not surprising that [the grandmother] would have negative thoughts about how the Director handled the case, how [the father] was treated and how this whole situation unfolded" (para. 75). Accordingly, the hearing judge gave limited weight to the grandmother's denials and reduced the reasonableness of the father's reluctance to allow W.D. to visit with the grandmother due to her "negative messaging". She committed no error in this regard. --- ##### (b) The Expert Evidence [80] I also cannot agree with the majority of the Court of Appeal that the hearing judge's views regarding the conduct of the Director inappropriately impacted her decision to accord limited weight to the expert psychologist's view that W.D. should live with his father. [81] The hearing judge took a measured approach: she qualified this expert, admitted her report and accepted her evidence about the father's parenting abilities, saying it gave the court some comfort. However, she gave limited weight to the expert's opinion about what placement was in the W.D.'s best interests, the ultimate issue the hearing judge was to decide. The hearing judge observed that the expert's evidence had its limits in assisting on the ultimate decision of what was in W.D.'s best interests because the expert's involvement with the father may have "clouded her view" that W.D. would equally benefit from an alternative arrangement (para. 109). [82] The majority of the Court of Appeal overturned the hearing judge on this point, substituted its view of how the expert's evidence should have been weighed, and granted custody to the father in part on this basis. With respect, the hearing judge committed no reviewable error and she was entitled to determine the weight to be given to the expert's opinion on this point. [83] The hearing judge was obliged to consider the objectivity and impartiality of the expert opinion evidence to ascertain both its threshold admissibility and the weight that should ultimately be ascribed to it (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 32; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 106). That the expert psychologist was engaged first by the father as a private professional to provide assistance about how to parent and then retained by the Director as a purportedly neutral observer to assist in evaluating the father's abilities to parent, created a reasonable concern about the expert's impartiality. The hearing judge was entitled to exercise caution about the weight to place on her opinion about the ultimate placement question. [84] Given the hearing judge's findings about the Director's conduct in these proceedings, it was reasonable for her to inquire into whether the expert's work with the father may have limited her objectivity in rendering an opinion about the appropriateness of the grandmother as custodian. This is consistent with the court's role to assess the independence and impartiality of expert witnesses, and the hearing judge committed no reviewable error in doing so. [85] The hearing judge was well within her authority to conclude that while the expert psychologist's evidence was probative insofar as it spoke to the father's parenting abilities, her evidence merited less weight when she opined on the child's ultimate placement. The hearing judge committed no reviewable error and was entitled to determine the weight to be given the expert's opinion. --- #### C. The Natural or Biological Parent Factor in Determining the Best Interests of a Child [86] I now turn to the third issue: what weight should a court give to a party's status as the child's biological parent in a child protection custody matter? [87] In child protection proceedings, the best interests of the child is the paramount consideration. The factors relevant to the best interests inquiry in child protection matters vary by jurisdiction, as they are prescribed by statute. In the Child Protection Act, s. 2(2) lists numerous factors that must be considered in determining the best interests of the child. [88] A biological tie is simply one factor among many that may be relevant to a child's best interests. While it is not an error for a court to consider a biological tie in itself in evaluating a child's best interests, a biological tie should generally carry minimal weight in the assessment. Judges are not obliged to treat biology as a tie‑breaker when two prospective custodial parents are otherwise equal. [89] Placing too great an emphasis on a biological tie may lead some decision makers to give effect to the biological parent's claim over the child's best interests. Parental preferences should not usurp the focus on the child's interests. A child's bond is a consideration that should prevail over the "empty formula" of a biological tie. [90] A biological connection is no guarantee against harm to a child and 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. In addition, the benefit of a biological tie itself may be intangible and difficult to articulate, which makes it difficult to prioritize it over other best interests factors that are more concrete. [91] The importance of a biological tie may also diminish as children are increasingly raised in families where those ties do not define a child's family relationships. Further, courts should be cautious in preferring one biological tie over another absent evidence that one is more beneficial than another. Comparing the closeness or degree of biological connection is a tricky, reductionist and unreliable predictor of who may best care for a child. [92] In the instant case, none of the enumerated factors in s. 2(2) of the Child Protection Act specifically relate to a parent's biological tie; therefore, a court is not directed to consider a child's biological relationship with the party seeking custody. The Court of Appeal overstated the importance of the father's biological tie to the child. [93] The hearing judge was not compelled to decide in favour of the father after concluding the two parties were more or less equal. It was open to her to dispose of the case based on a factor that she considered more significant: the question of which parent was more likely to maintain the child's relationship with the other parent. [94] None of the enumerated factors in s. 2(2) of the Child Protection Act do, in fact, direct a court to consider a child's biological relationship with the party seeking custody. In light of this omission, the Child Protection Act accords little weight to biology as it impacts the best interests of the child assessment. [95] It is true the Child Protection Act affords various rights to "a parent", including the right to counsel under s. 30. However, it must first be acknowledged that these procedural rights are not afforded to biological parents alone. The definition of "parent" reflected in s. 1(s) of the Child Protection Act is broad and inclusive. It includes a birth or adoptive parent (s. 1(s)(i)). But it also includes a person who has stood in loco parentis for over a year (as here) (s. 1(s)(ii)), a legal guardian (s. 1(s)(iii)), or a person responsible for the child's care and with whom the child resides (s. 1(s)(iv)). The Child Protection Act's preamble references the need to ensure children are removed from their parents' care only when other measures have failed. Yet, given a "parent" includes biological and non-biological parents, the preamble applies to both alike. The legislation is not protecting or privileging blood ties: it is setting out procedural safeguards for all of those individuals, with or without a biological tie to the child, who have a connection with the child as a statutorily defined "parent". [96] Further, these rights are a response to the state's authority to remove children from their existing families and reflect the significant impact such proceedings have on children and parents alike. Parents are afforded several procedural protections to ensure the proceedings are fair, including a right to counsel (G. (J.), at paras. 70-75, citing La Forest J. in B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 88). The procedural rights afforded to parents under the statute, however, do not add greater weight to biological ties in the assessment of a child's best interests under the Child Protection Act or otherwise. [97] In the end, the child's best interests is the paramount consideration in child protection proceedings (G. (J.), at para. 72). State apprehension is warranted when maintaining a child's existing family relationship is no longer in the child's best interests (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at pp. 204-5). Where a child has been apprehended from a parent's care, and the proceedings evolve into a dispute between a biological parent and a non-biological parent over a child's permanent placement, a biological tie may or may not be a significant factor. The weight to be accorded it will depend on the evidence before the court. [98] The hearing judge did not err in her approach to the father's biological tie to the child. She was aware of it and considered it. She was not obliged to apply a presumption in favour of the biological parent, nor to treat biology as a tie-breaker. The hearing judge disposed of the case based on a factor she considered more significant: the question of which parent was more likely to maintain W.D.'s relationship with the other parent and his broader family network. That was her call to make. --- ##### (1) The Hearing Judge's Treatment of the Biological Factor in the Case at Bar [99] The majority of the Court of Appeal faulted the hearing judge for failing to give adequate weight to the father's status as W.D.'s biological parent. I disagree. [100] The hearing judge's treatment of the biological factor was entirely appropriate. She acknowledged the father's status as W.D.'s biological parent and considered it as one factor among many in her best interests analysis. She declined to treat it as a tie-breaker when the two candidates for custody were otherwise more or less equal on other factors. [101] In any event, this is not a case where everything else was equal. The hearing judge made key factual findings that distinguish the grandmother from the father: (1) the grandmother had a longstanding and significant relationship with W.D. while the father had only recently met him; (2) the grandmother was more likely to promote W.D.'s relationship with the father and his family; and (3) the father's track record in facilitating access to the grandmother was concerning. [102] These were the hearing judge's findings to make. They are entitled to deference. The majority of the Court of Appeal should not have substituted its own assessment of the evidence. --- ##### (2) The "Natural Parent" Doctrine [103] I wish to add some general observations about the "natural parent" doctrine to provide guidance on this point going forward. [104] In some jurisdictions and in certain earlier cases, courts have given presumptive or enhanced weight to the claims of a "natural" or "biological" parent in custody disputes. The rationale has variously been expressed in terms of the child's need for a biological connection, the presumptive bond between a parent and child, and the state's reluctance to sever that bond. [105] To the extent the "natural parent" doctrine suggests that a biological tie should generally carry significant weight in custody disputes, or that biology should operate as a tie-breaker, I do not endorse it. It overstates the significance of biology in child welfare proceedings and risks causing harm to children who have formed strong bonds with non-biological caregivers. [106] The "natural parent" doctrine is not a recognized principle in child protection legislation in Canada. These statutes define "parent" broadly to include a range of biological and non-biological caregivers. Their focus is on the best interests of the child, not on the biological ties between a child and a parent. [107] In King v. Low, [1985] 1 S.C.R. 87, this Court held, in the context of the Divorce Act, that there is no presumption in favour of the "natural parent" in a custody dispute. The primacy of the child's best interests was affirmed, and a biological tie was held to be relevant but not determinative. This reasoning applies with equal force in the child protection context. [108] A biological tie may be relevant to a best interests analysis in a variety of ways. For example, a child's biological heritage may be relevant to their identity and sense of self. This may be particularly significant for Indigenous children (Racine v. Woods, [1983] 2 S.C.R. 173). But, even in these contexts, the biological tie is one factor among many, to be weighed against other considerations in light of the evidence. [109] I would add that courts should be cautious in distinguishing or prioritizing one biological tie over another. A child may have meaningful biological connections with more than one party in a custody dispute. Comparing the closeness or degree of biological connection risks reducing the analysis to a reductionist and unreliable metric that does not capture the complexity of a child's best interests. [110] In sum, a biological tie generally carries minimal weight in a best interests of the child analysis. The weight to be accorded a biological tie will depend on the evidence and the specific circumstances of the case. A judge is entitled to conclude that other factors are more significant, including the nature of the child's existing bond with the parties and the capacity of each party to promote the child's other significant relationships. --- ##### (3) Whether the Hearing Judge Erred in Her Application of the Biological Factor [111] Returning to the case at bar, the hearing judge did not err in her approach to the biological factor. She acknowledged that the father was W.D.'s biological father and was aware of his developing bond with W.D. She did not ignore biology; she declined to treat it as a tie-breaker. She was entitled to do so. [112] Finally, the hearing judge was not compelled to decide in favour of the father after concluding the two parties were more or less equal. It was open to her to dispose of this case based on a factor that she considered more significant: the question of which parent was more likely to maintain the W.D.'s relationship with the other parent. --- ### VI. Disposition [113] Pursuant to this Court's judgment issued from the bench on December 2, 2021, and for the above reasons, the decision of the Prince Edward Island Court of Appeal was set aside and the decision of Key J. to award permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the Child Protection Act was affirmed. W.D. was to remain with the father until March 21, 2022 and thereafter be returned to P.E.I. at the expense of the Director. The appeal was allowed with costs throughout to the grandmother. [114] The Court's judgment affirming the permanent custody and guardianship to the grandmother under s. 38(2)(e) of the Child Protection Act is binding and enforceable. --- Appeal allowed with costs throughout. Solicitors for the appellant: Cox & Palmer, Charlottetown. Solicitors for the respondent: Stewart McKelvey, Charlottetown. Solicitor for the intervener Director of Child Protection for the Province of Prince Edward Island: Department of Justice and Public Safety, Charlottetown. Solicitors for the intervener LGBT Family Coalition: IMK, Montréal. --- [^1]: I recognize that there has been a shift from the terminology of "custody" and "access" to such terms as "decision-making responsibility" and "parenting time". This shift is codified in some legislation, including the new Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the recently enacted Children's Law Act, R.S.P.E.I. 1988, c. C-6.1, in P.E.I. — the jurisdiction where this dispute arises. Notwithstanding these changes, the dispute before the Court is governed by the P.E.I. Child Protection Act, R.S.P.E.I. 1988, c. C-5.1, which speaks in reference to the concepts of "custody" and "access". The language in my reasons reflects the language in the governing statute.