B.J.T. v. J.D.

B.J.T. v. J.D.
Collection
Supreme Court Judgments
Date
2022-06-03
Neutral citation
2022 SCC 24
Case number
39558
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Prince Edward Island
Subjects
Family law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: B.J.T. v. J.D., 2022 SCC 24
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)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
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
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).
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 from a judgment of the Prince Edward Island Court of Appeal (Jenkins C.J. 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.
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] W.D.’s mother tried to raise W.D. on her own but she struggled to care for her newborn as she battled significant mental health challenges. As the mother’s difficulties with parenting W.D. became clear, the grandmother quit her job, left her home in Alberta, and moved to P.E.I. to help. W.D. was around three months old when his grandmother first arrived in early 2014.
[12] Once she moved to P.E.I., the grandmother was deeply involved in his care. She lived with W.D. and the mother, supported them financially, and provided daily care to W.D. This arrangement lasted for approximately two years until March 2016, after which she returned to Alberta. The grandmother returned to P.E.I. in March 2017 and she resumed her role as W.D.’s caregiver. Though she did not live with W.D. at this time, she provided financial support and W.D. frequently visited her home.
[13] This arrangement ended abruptly in August 2017 when the mother’s condition worsened and she refused to allow the grandmother to contact W.D.
[14] A few months later, in January 2018, when W.D. was four years old, the Director apprehended W.D. from his mother without a court order. The Director believed W.D.’s mother was unable to provide adequate supervision or protection for W.D. on her own, given her continuing battle with mental illness. After many postponements, a combined protection and disposition hearing was eventually held (see Child Protection Act, ss. 36-37). On May 29, 2018, Justice Matheson found that W.D. was in need of protection from his mother and gave temporary custody of W.D. to the Director for three months.
[15] When the grandmother learned W.D. was apprehended, she took the necessary steps so that she could become his foster parent. In June 2018, two weeks after the initial protection order was granted, the Director entered into a foster parenting agreement with the grandmother and placed W.D. in her day-to-day care.
[16] While the foster parenting agreement was ongoing, the Director informed W.D.’s father in February 2019 that he had a son. After paternity was confirmed, the father wanted to have his son reside with him in Alberta, and began to prepare for parenthood. He took a parenting course and retained the services of a psychologist. The father is diagnosed with Asperger’s Syndrome and describes himself as someone with autism who is high functioning.
[17] In May and June 2019, the grandmother notified the Director about allegations of violence by the father, some of which impacted W.D.’s half-brother. The Director arranged an interview with the half-brother, but before this interview, and before W.D. had met his father, the Director amended its application to support the father’s bid for permanent custody. The interview with the half-brother took place a few days after the amendment of the application.
[18] The half-brother recounted that he observed violence between W.D.’s father and his mother, that he had once jumped on the father’s back in an attempt to protect his mother and that he had been thrown against a wall by the father, and that he feared the father.
[19] On June 24, 2019, some three days after the half-brother’s interview, the Director continued to allow the father to have his first visit with W.D. as they planned in late May or early June.
[20] On June 24, 2019, the father flew to P.E.I. with his parents and the psychologist that he hired and they were all introduced to W.D. The Director allowed daily visits for the father over this two-week period. In that brief time, his visits went from fully supervised to completely unsupervised overnight stays.
[21] On June 20, 2019, the grandmother filed a motion for an order designating her a “parent” under s. 1(s) of the Child Protection Act. With this designation, the grandmother would have the statutory rights of a parent, including the right to file a parenting plan at the disposition hearing to outline a proposal for placing W.D. in her permanent custody (s. 37(1.2)). The Director opposed the motion.
[22] The motion judge concluded the grandmother met the statutory definition of a parent because she had stood in loco parentis to W.D. for a period of not less than one year and has a continuing relationship with him. The grandmother had stood in loco parentis during two periods: the two years after she arrived in P.E.I. soon after W.D.’s birth and until she temporarily returned to Alberta, and again when she acted as W.D.’s foster parent after his apprehension in January 2019. Further, the motion judge found the grandmother had an uninterrupted relationship with W.D. since he was an infant, despite the relationship facing numerous challenges. The court order recognizing the grandmother’s legal status as a “parent” of W.D. was effective as of July 2, 2019.
[23] The next day, on July 3, 2019, the Director ended the foster parent arrangement with the grandmother and removed W.D. from her care without notice. W.D. left his grandmother’s home for camp like normal, but he was apprehended by the Director who has never allowed him to return. The Director instead chose to place W.D. with foster parents, who were strangers to him. While this foster parent arrangement was in place, the Director allowed the grandmother to have supervised visits with W.D. for four hours per week.
[24] The Director said that W.D.’s removal from his grandmother’s care was because of the grandmother’s “negative messaging” to W.D. about his father. However, the hearing judge accepted the grandmother’s evidence she had never engaged in such conduct.
[25] On July 31, 2019, the Director appealed the order designating the grandmother a parent. That appeal was heard on December 9, 2019 and dismissed on December 12, 2019.
[26] Approximately four weeks into the new foster parenting arrangement, the Director elected to send W.D. to Alberta for a second visit with his father. The trip, which began on August 8, 2019, was to last three weeks, but W.D. has never returned to P.E.I.
[27] Thereafter, the Director hired the same psychologist retained by the father to assess the father’s parenting ability. On August 22, 2019, the psychologist recommended that W.D. remain in Alberta with his father. Shortly after, the Director decided to make the visit indefinite and enrolled W.D. in school in Alberta. Thus, when the disposition hearing on permanent custody eventually took place in February 2020, the Director had allowed W.D. to remain in Alberta with his father since the previous summer.
[28] After W.D. arrived in Alberta, the Director limited the grandmother’s access. Other than video calls, the Director had not permitted W.D. to see his grandmother for six months. However, just two weeks before the disposition hearing, the Director allowed the grandmother to travel to Alberta to have her first in-person visit over the course of a single weekend. The Director placed several conditions on the grandmother’s visit: her time with W.D. was supervised, limited to public spaces, and capped at seven hours over three days. The Director denied the grandmother’s request for an overnight stay with W.D. at her hotel and gave no reasons for requiring supervised visits.
[29] After months of delays, a review hearing of the initial apprehension order that was initially scheduled for October 3, 2018 finally took place on January 13-15, 2020 (2020 PESC 9). W.D. remained in need of protection from his mother and a disposition hearing was ordered to settle permanent custody.
III. Judicial History
A. Disposition Hearing under Section 37 of the Child Protection Act: Supreme Court of Prince Edward Island, 2020 PESC 23 (Key J.)
[30] The disposition hearing was scheduled over three days in February 2020, followed by a single day of oral submissions in March 2020. Given that W.D. had been in the temporary custody of the Director in excess of the statutorily permitted timelines, a further temporary custody order pursuant to s. 38(2)(c) of the Child Protection Act was not permitted. Rather, the court was required to place W.D. in the permanent custody and guardianship of either the Director (s. 38(2)(d)) or a “parent” (s. 38(2)(e)).
[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 (CanLII)). 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 observed that while it is not always necessary for a parent to provide expert opinion evidence about their ability to parent, given the unique factors in this case, such evidence was relevant and necessary. She qualified the father’s psychologist as an expert in psychology with a specialty in children and the parenting of children and admitted her report.
[36] The hearing judge accepted the expert psychologist’s evaluation of the father’s parenting ability because it was “objective and unbiased” (para. 109). She noted that the expert psychologist travelled with the father for the two-week period in which he met W.D. She had spent much time with the father, was in contact with a number of the child protection workers in P.E.I. and Alberta, and continued to provide guidance and advice to the father.
[37] The hearing judge, however, assigned less weight to the expert psychologist’s view on the ultimate issue of whether permanent custody with the father was in W.D.’s best interests. She noted that the expert psychologist recommended to the Director that W.D. remain in Alberta, a recommendation with which the Director had “quickly agreed” (para. 108). The hearing judge concluded that when the psychologist stepped outside of commenting on the father’s ability to parent and opined about where W.D. should ultimately live, she had shown “a bias towards [the father] and she moved from being objective and nonpartisan to being an advocate for [the father]” (para. 109). She explained further that “her involvement with [the father] and his family may have clouded her view that any other parenting arrangement for W.D. would have been equally as beneficial” (para. 109), and that because she has never met W.D.’s mother or grandmother, “what little she knows of W.D.’s PEI family has been provided to her by the Director’s workers” (para. 110). The hearing judge concluded: “Therefore, while I accept the evidence of [the father’s] ability to parent, I have placed less weight on [the expert psychologist’s] opinion in terms of my ultimate decision” (para. 110).
[38] The hearing judge then tied the evidence she accepted from the numerous witnesses to each of the relevant statutory best interests of the child factors under s. 2(2) of the Child Protection Act. In doing so, she found: W.D. was safe with either parent (s. 2(2)(a)), there were no concerns with the ability of either parent to access care or treatment to meet W.D.’s physical, mental and emotional needs (s. 2(2)(c)), both parents had the capacity to ensure that W.D.’s developmental needs are met (s. 2(2)(d)), and either home would provide for W.D.’s security and the development of a positive relationship within the particular family with whom he resides (s. 2(2)(f)). Based on these considerations, the grandmother and the father — who were both parents for the purposes of her analysis — were “more or less equal in their ability to care for W.D.” (para. 215).
[39] However, her inquiry did not end there as there was “another factor” that, when duly considered, militated in favour of a grant of custody to the grandmother (para. 214). For the hearing judge, the primary differentiating factor was the grandmother’s willingness to support and promote W.D.’s relationship with the father and his family. The hearing judge accepted the grandmother’s evidence that she could “set aside any hard feelings toward [the father] and his family for W.D.’s sake”, that she would be respectful and allow W.D. to maintain contact with his father, and that she had “no issue flying with W.D. to Alberta and leaving W.D. with [his father] and his family for weeks at a time” (para. 192-93). The father, on the other hand, was resistant to committing to ensuring a meaningful relationship with the grandmother and W.D.’s then 17-year-old half-brother.
[40] The hearing judge noted that W.D. had the right to the love, affection, and ties of both families (s. 2(2)(g)). She found as a matter of fact that the grandmother would promote the relationship with the father and his family but, unless ordered by the court, the father would not ensure W.D. would have a meaningful relationship with his P.E.I. family.
[41] In arriving at her decision, the hearing judge was attuned to the Director’s handling of W.D.’s file, noting that at the time of the hearing, W.D. “continue[d] to remain in the custody and guardianship of the Director notwithstanding the review hearing took place approximately 20 months after he was apprehended, well beyond the statutorily mandated time limits” (para. 7). She concluded that the Director removed W.D. from his grandmother’s care and placed him in foster care “for flimsy reasons” (para. 8). She also observed that the Director supported the father’s parenting plan before having ever met him and even before father and son had even been introduced to each other.
[42] She concluded that the actions of the Director’s delegates effectively demonstrated that they only considered two options for W.D.: permanent custody with either the father, or the Director. Hence, despite the significant progress W.D. had made in the more than one year of his grandmother’s day-to-day care, W.D.’s family in P.E.I. was being disregarded in favour of the father. The “unstated goal” of the Director was to assist the father in becoming W.D.’s everyday parent (para. 89), without consideration of the possibility of the grandmother acting as W.D.’s permanent guardian. Moreover, the hearing judge found that the Director’s conduct “effectively tied the court’s hands preventing it from making a comprehensive custodial order with respect to W.D.’s future” (para. 90). That said, she expressly acknowledged that the focus of the hearing was not on blame, and reiterated that the “sole focus must be and is the best interests of W.D.” (para. 91).
B. Court of Appeal for Prince Edward Island, 2020 PECA 14 (Jenkins C.J.P.E.I. and Murphy and Mitchell JJ.A.)
[43] The majority of the Court of Appeal agreed with two of the father’s grounds of appeal, and concluded that the hearing judge (1) considered an irrelevant factor, being the Director’s conduct; and (2) failed to consider the father’s principal argument that as a natural parent, the “parental preference” favoured his custody claim.
[44] On the first ground, the majority concluded that the hearing judge “allowed her distaste for the Director’s behaviour, an irrelevant consideration, to impact her assessment of the best interest of the child by giving less weight to [the expert psychologist’s] opinion” (para. 79 (CanLII)). There was no basis for the conclusion that the expert psychologist showed bias. The psychologist was clear her expert report was intended to opine on the father’s parenting ability; she did not opine on the grandmother, nor on whether an alternative parenting arrangement was beneficial. What the Director may or may not have done on the psychologist’s advice was irrelevant: the focus was to be solely on W.D.’s best interests.
[45] On the second ground, the majority found that the hearing judge failed to grapple with the father’s principal legal argument that a child’s welfare is best served in the custody of their natural parents and that natural parents should be deprived of custody only when clearly necessary. In doing so, she denied the father’s right to be heard. Moreover, it concluded that when a parent and non‑parent are “more or less equal” after all relevant factors are considered, or when the non-parent is only slightly better, the “natural parent factor” is decisive (para. 113).
[46] Rather than remit the matter, the majority concluded that W.D.’s best interests favoured permanent custody with his father. In arriving at its own determination, the majority accepted all of the hearing judge’s findings of fact, but afforded what it deemed as appropriate weight to the expert psychologist’s evidence and factored in the natural parent factor.
[47] Jenkins C.J.P.E.I., in dissent, would have dismissed the appeal. He found that reading the judgment as a whole, the hearing judge carefully assessed and balanced all of W.D.’s best interests. There was no basis for appellate intervention.
[48] On the first ground of appeal, he opined that the hearing judge was not put off track when she considered the Director’s actions. A judge can consider the surrounding context when assessing a child’s best interests. Here, that context included the Director and the father’s joint goal of securing the father’s custody of W.D. Nor did the hearing judge err in her finding that the expert psychologist went beyond her mandate and became an advocate for the father when she made a recommendation to the Director that W.D. remain in Alberta. The hearing judge was entitled to distinguish between the psychologist’s professional opinion on the father’s parenting ability and her recommendation that W.D. remain in Alberta until the disposition hearing.
[49] On the second ground, Jenkins C.J.P.E.I. concluded that the hearing judge’s failure to discuss the father’s argument on the “parental pr