NL Court of Appeal refuses to grant sole parenting right based on 'biological ties'

The Newfoundland and Labrador Court of Appeal has refused to grant exclusive parenting rights to a child’s biological mother, stating that the sole determining factor with respect to the child’s parenting is the child’s best interest.

The case of M.E.G. v. S.P., 2022 NLCA 50 involved a parenting dispute between a paternal grandmother and the child’s mother. The grandmother was the primary caregiver since the death of the child’s father in 2015 because the child’s mother was not capable of parenting and was not present in his life. However, after several years, the mother expressed an interest in becoming part of her son’s life and in parenting him.

With the grandmother’s co-operation, the mother eventually reintegrated into a parenting role. The parties agreed on an arrangement for equal sharing of parenting duties. After some time, the mother sought sole parenting rights, asserting that it was in the best interests of the child to live with her exclusively. She described the grandmother’s future role as a “backup.”

The matter was brought to the Newfoundland and Labrador Supreme Court, where a judge ordered that the child was to live exclusively with his mother, who would have sole parenting rights, and the grandmother was to have a minimum of one weekend per month of access. The grandmother argued that the agreed equal-parenting arrangement was working well and that it was in best interests of the child for this arrangement to continue. She appealed the decision, contending that the judge made errors in law and misapprehended the evidence when assessing the best interests of the child.

Best interests of the child

The “best interests of the child” is the guiding principle in most custody matters, as it involves not only physical and economic well-being, but also emotional, psychological, intellectual, and moral well-being, said the appeal court.

The grandmother was considered a “parent” under ss. 26 and 31 of the Children’s Law Act, as ruled by the lower court judge. The judge observed that, although the grandmother was not a natural parent, she occupied a parental role. The judge further found that the grandmother and mother both had the ability to parent the child, they both provided stable home environments, and they are both capable and willing to take care of the needs of the child. Despite these findings, the judge ruled that “the natural and continued progression would be for the child to eventually be with his mother.”

The appeal court said it was an error for the judge to consider that there was a “natural progression” toward the child living exclusively with the mother as opposed to his grandmother. The judge’s analysis implied that, based on the child having a closer biological tie with the mother, the child’s proper place was with his mother and not his grandmother. The grandmother’s counsel likewise asserted, and the appeal court agreed, that the judge’s analysis was inconsistent with assessing parenting based on the child’s best interests.

Biological ties irrelevant

The Supreme Court of Canada in B.J.T. v. J.D., 2022 SCC 24 stated that “there is no presumption favouring biological parents” –biology is irrelevant where both legal parents have biological ties and nothing in the record establishes that one type of tie is better than the other. The top court cautioned that “too great an emphasis on biological ties may lead some decision-makers to give effect to the parent’s claim over the child’s best interests.”

The appeal court adopted a similar view, stating that it was not evident how or why there would be a natural progression leading to exclusive parenting rights in favour of the mother. The court further said that under the best-interests-of-the-child analysis, there was no presumption of any “natural progression.” Rather, the sole determining factor with respect to the child’s parenting was whatever arrangement was in the child’s best interests.

After considering all the relevant factors, the appeal court concluded that it was in the best interests of the child to reinstate equal, shared parenting between the grandmother and the mother, with joint decision-making on all major decisions.