Introduction

Welcome back to Case Comments from a Christian Perspective. Earlier this year, the Supreme Court rendered its decision in BJT v JD, 2022 SCC 24. The court’s reasons serve as an unfortunate garnish on top of Canada’s longstanding legal and social movement away from the importance of biological parents and the legal recognition of the nuclear family. Canada’s highest court has been moving away from the primacy of biological connection as far back as 1985.

The Facts: What was the Supreme Court working with?

The case is a tragic one centring on a young boy. In most court cases, minors are referred to by their initials and not their full names, so for the sake of clarity in this article let us call the boy William. William’s mother was from PEI and his father was from Alberta. The married couple had lived in Alberta, but the relationship was a rough one. William’s mother soon returned to PEI, pregnant with William. William’s father was unaware of his son’s existence. In PEI, it became clear that William’s mother could not take care of him because she had serious mental health problems. So, William’s maternal grandmother moved from Alberta to PEI to take care of him. After entrusting William to her for two years, William’s mother—still not doing very well—suddenly forbade her mother from ever seeing William again. At this point, PEI’s Director of Child Services stepped in and took temporary custody of William. The Director notified William’s father that he had a son—some seven years after William was born.

At roughly the same time, William’s grandmother successfully applied under PEI law to be designated as William’s third parent.  When William’s mother did not seek custody of her son, a custody battle ensued between William’s father and grandmother—that case is the subject of this article. When the trial and the two appeals were over, the Court gave both custody and guardianship to the grandmother.

The Law: Why did the Supreme Court rule as it did?

Whenever a court makes a decision about a child, the law directs courts to focus on the “best interests of the child” — as well they should. Each province gets to flesh out exactly what these “best interests” are. PEI law says that the following criteria make up the “best interests of the child”:

1. The safety of the child
2. The capacity of a parent to properly discharge parental obligations
3. A secure place for the child to develop a positive relationship as a member of a family
4. The love, affection, and ties between the child and persons who have custody of the child
5. The love, affection, and ties between the child and other persons in the life of the child
6. The capacity of a person other than a parent to exercise custody rights and duties respecting a child
7. The continuity of care
8. The developmental capacity of the child

It’s a long list of factors. The judge can decide which ones to apply and which ones are most important in a particular case. But, for many years, defining what was in the best interests of the child was a much simpler exercise. Pre-1985, the standard legal presumption in Canada was that “the welfare of the child is best served in the custody of the child’s natural parent.” In a case called King v Low, an adoption case, the Supreme Court changed the conversation, saying that it is not biology that makes natural parents the preferred parents for a child. Instead, it is the emotional bond that begins when a parent begins to care for a newborn. The Supreme Court labelled biology an “empty formula.” Building on that, the Supreme Court in William’s case (BJT v. JD)offered three reasons why biology should not be given much weight:

1. Biological ties often lead to courts considering parental preferences rather than the child’s interests.
2. A child’s bond with their caregivers (parents or otherwise) is higher than biology and there is no “magic” in a biological tie; the only thing that matters is a close psychological bond.
3. Biological ties are difficult to articulate because family institutions have undergone a “profound revolution.”

BJT’s Immediate Effect

A few months after the BJT decision was released, its anti-biology stance was picked up by the Alberta courts in MacDonald v Campbell. Here the fight was between the divorced parents of Ava. Young Ava had been spending one week with her father and stepmother (the MacDonalds) in Dawson Creek, British Columbia, and the next week with her mother (Ms. Campbell) in Grande Prairie, Alberta. Now that Ava was set to start kindergarten, the parents went to court to come up with a more permanent living situation for her. Ms. Campbell submitted that the court should not prefer the MacDonalds simply because they had a two-adult household, since Mrs. MacDonald had no biological connection to Ava. However, the court, citing the Supreme Court’s new BJT ruling, wrote that “biology is of no import” and ruled that Ava must primarily reside with her father and stepmother.

Biology is best for kids

Calling the biological ties between parents and children an “empty formula” is inaccurate, to say the least. Evidence suggests that the biological connection between parents and their children is indeed the “magic” that makes the two-parent biological family the best place for kids to grow up. Sara McLanahan was a Princeton sociologist who spent decades putting together the Fragile Families and Child Wellbeing Study, which tracked 5000 children between 1998 and 2000. In Dr. McLanahan’s opinion,

If we were asked to design a system for making sure that children’s basic needs were met, we would probably come up with something quite similar to the two-parent family ideal. Such a design, in theory, would not only ensure that children have access to the time and money of two adults, it would provide a system of checks and balances that promote quality parenting. The fact that both adults have a biological connection to the child would increase the likelihood that the parents would identify with the child and be willing to sacrifice for that child and it would reduce the likelihood that either parent would abuse the child.

Dr. Melissa Moschella, a philosophy professor at the Catholic University of America, the Emory University School of Law, and Columbia University, states that children have needs that can only be met in a certain way by their birth parents:

The fact that children’s initial and prolonged state of neediness, together with their existence, flows precisely out of their personal relationship with their biological parents, implies that children are personally dependent on their biological parents for the ideal fulfillment of their developmental needs.

In 2015, the Woodrow Wilson School of Public and International Affairs and the Brookings Institution concluded, “most scholars now agree that children raised by two biological parents in a stable marriage do better than children in other family forms across a wide range of outcomes.” It’s not just American scholars who have made these conclusions. Canadian scholars have come to the same conclusions after examining Statistics Canada’s National Longitudinal Survey of Children and Youth.

Simply put, biological ties between parents and children matter from a children’s rights perspective.

If we return to the three reasons the Supreme Court gave for throwing biological ties into the metaphorical legal dumpster, clearly there are strong evidence-based responses to each of those reasons.

What do we mean by children’s rights?

Before digging down into the Supreme Court’s three reasons, we should review some general background. If we are to approach family law from a children’s rights perspective – and we should – then we need to ask what is best for children. When we speak about “children’s rights,” we need to be conscious that we are not talking about “rights” in the liberal-humanist conception. Instead, we are talking about rights from a natural law perspective. Such a perspective recognizes that children are a gift from God, entrusted to the care of parents. Both parents and children have obligations to each other, obligations that are to be fulfilled in love.

Figuring out what is best for a family will always include respect for biological ties between parent and child because this respect is ultimately an acknowledgement that it is God who gives parents to their children and children to their parents.  As the cases covered here express, following God’s design is better for us as humans than when we go our own way.

Countering the Supreme Court’s reasoning

The Supreme Court’s first reason for rejecting biological ties as a legal concept is a fear that, by prioritizing biological ties, the law would come to view children as property. What if we approached this idea from a child’s perspective? What if we instead stated that every child has the right to be known and cared for by both their mother and father, a right not to be separated from his or her parents, and the right to their biological identity and extended family? In this scenario, we have simultaneously prioritized biological ties and avoided the worry of the Supreme Court. None of these rights logically lead to viewing children as property. In fact, these rights would be more in line with what Canada has agreed to on the international stage, through documents like the UN Convention on the Rights of the Child.

The Supreme Court’s second reason for rejecting biological ties is their repackaging of the commonly held belief that all kids need in order to grow up healthy and happy is to be safe and loved. But, as we have seen, if you truly want children to grow up happy and healthy, the statistical reality is that is most likely to occur when they grow up with their biological parents.

The third reason the Supreme Court gives for rejecting the importance of the biological family is that family institutions have profoundly changed. Although it is their third reason, society’s changing conception of the family is likely the primary driving force behind the court’s stance. But the changes in family structure introduced over the last fifty years in Canada have certainly not been brought about by children’s advocates or a general desire to improve child welfare. Rather, the desire of adults to live as they see fit and raise a family on their own terms has driven the change.

Would a Different Legal Perspective Have Changed the Outcomes of these Particular Cases?

Our concern with these cases is not necessarily the outcome – the decisions reached by the courts might have been the correct ones. In BJT, keeping William with his grandmother meant that he would get to see both his biological parents and therefore still have access to his biological identity, while his father seemed to have no intention of letting him see his mother. In Macdonald v Campbell, Ava ended up in a home where the two adults, one of which was her biological father, were in a married committed relationship.

It is worthwhile to note that Mr. MacDonald had urged Ms. Campbell to abort Ava. However, after the child was born, he seemed to completely change his mind, whereas Ava’s mother, Ms. Campbell, was in a volatile relationship with a boyfriend at the time of the court case. Statistically, children do worse with a stepparent than with both their biological parents, but they do even worse when they are in a household that is composed of one biological parent and a boyfriend/girlfriend.

If there are good reasons for these decisions from a children’s rights perspective, does the courts’ anti-biology stance matter that much? The answer is yes. The issue lies in the reasoning used, and how that will now be used to apply to future cases. Bad facts make bad law. It was a unanimous court that named biological ties an “empty formula.” BJT will now have a wide-ranging effect, far beyond the factual bounds of the two cases covered in this article.

Opportunity to make the law truly child-centric still possible

The Supreme Court’s views on biological ties need not be the final word in family law. The Supreme Court has said in the past, and confirmed in BJT, that it is the statutory factors that provide the starting point for assessing how important biological ties are. This means, if provincial legislatures take the bold move of centring their statutes on children’s rights, including the right to know and be in a relationship with their biological parents, courts will give greater consideration to biological ties. PEI’s laws focused on “love, affection, and ties,” reflecting the idea that kids need love and safety, but biological parents are optional. The PEI law also gives a broad definition to the word “parent,” further diluting the presumption of value in biological ties. But it doesn’t have to be this way; family law is truly a legal area where provincial legislatures set the bounds in which courts make decisions. Canadian provinces should get serious about putting children first and change their laws accordingly.