The mother and father married, and after an incident of domestic violence, the mother moved from Alberta, where she lived with the father, to Prince Edward Island. At the time, the father did not realize that the mother was pregnant and did not know of the child’s existence until the child was about five years old when the Director of Child Protection (the “Director”) contacted him to inform him of the proceedings. The mother had issues raising the child on her own as she struggled with significant mental health issues. Her mother moved in with her to help when the child was about three months old. The grandmother supported them financially and provided care to the child.
In August 2017, the mother’s condition got worse, and she barred the grandmother from seeing the child. A few months later, the Director believed that the mother was not able to care properly for the child, and a court granted temporary custody to the Director for three months. When the grandmother became aware of what happened, she became a foster parent, and the Director entered into a foster parenting agreement with her and placed the child in her care. It was around this time that the Director told the father about the child’s existence. The father took a parenting course and began to prepare to have the child live with him. The grandmother informed the director of the abuse allegations. Regardless of these allegations, the director allowed the father to have parenting time with the child going from supervised to unsupervised overnights in 2 weeks. The grandmother then applied to be designated as a parent, which was granted. The day after it was granted, the director ended the foster parent arrangement with the grandmother and took the child away from her without notice and placed him with foster parents that he did not know. The director allowed supervised visits with the grandmother for 4 hours per week. The Director claims that this was because the grandmother had been saying negative things to the child about the father.
A month into the new arrangement, the director allowed the child to go to Alberta to visit his father. The child never returned to P.E.I. The child had limited access to the grandmother, only video calls for six months. When the director finally allowed the grandmother to visit, he placed several restrictions on the visit, including having only supervised visits and denying her overnight stay.
The hearing judge noted that the grandmother was willing to put aside any animosity she felt towards the father and help foster a relationship between the child and his father. On the other hand, the father did not seem willing to want to help the child foster a relationship with his grandmother and his half-brother. She also noted that the Director made a lot of mistakes in terms of the decisions he made with regard to the matter. She granted custody to the grandmother.
The Court of Appeal concluded that the hearing judge considered an irrelevant factor (the behaviour of the Director. The Court of Appeal also concluded that as the natural parent, the parental preference favoured his custody claims. They reversed the decision and granted custody to the father. There was a dissent, however, who believed that the hearing judge decided the matter correctly and deference should be given to the hearing judge. The matter was then appealed to the Supreme Court.
The Supreme Court asked three questions:
- When can an appellate court intervene in determining the best interests of a child?
- Did the hearing judge err in her determination of the child’s best interests? 7
- How much weight should be given to the fact that a parent is a biological parent in terms of a child protection matter?
The Court held that the case of Van de Perre v. Edwards, 2001 SCC 60,  2 S.C.R. 1014, at para. 11, citing Hickey v. Hickey,  2 S.C.R. 518, at para. 12, should be followed. It states that an appellate court should not intervene in a matter unless there has been “a material error, a serious misapprehension of the evidence, or an error in law.” The court held that significant deference should have been given by the Court of Appeal to the hearing judge.
The Court held that the assessment for the best interests of the child by the hearing judge was thorough in addressing the sum of the parts.
The Court agreed with the grandmother’s assertion that the Court of Appeal overstates the importance of the father’s biological ties to the child. The Court of Appeal concluded that biological parenthood was very important, and the courts should consider it a tie-breaker when a parent and non-parent were otherwise equal. The Supreme Court disagrees with this notion. It is one of many factors that should be considered; however, no one factor should be placed above the other. The most important thing is the child’s best interests.
The Supreme Court unanimously granted custody to the grandmother, in line with what the hearing judge held. The Supreme Court held that the Court of Appeal erred in its analysis and should have deferred to the hearing judge.
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