This Month In Family Law ' June 2022

• Published date: 15 July 2022
• Subject Matter: Family and Matrimonial, Family Law
• Law Firm: Cox & Palmer
• Author: Ms Jocelyn Campbell, Michelle Axworthy, Dominique Perinchief, Andrea Pierce and Kelcie N. White

B.J.T v J.D., 2022 SCC 24

Justices Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; C'té, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud

Subject matter: Standard of review | Child protection | Biological ties

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.

In 2017 the child was then apprehended from his mother's care by the Director of Child Protection. At the disposition hearing under s. 37 of the Child Protection Act, 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. Concluding that the hearing judge failed to consider the father's argument that as a biological parent, his custody claim should be favoured.

First, the Supreme Court of Canada (SCC) considered the applicable standard of review when assessing a hearing judge's conclusions concerning custody. The SCC relied on the leading decision on standard of review for custody and access decisions, Van de Perre v. Edwards, 2001 SCC 60, which found the guiding principle and paramount consideration in custody matters is the best interests of the child. The question of which factors are relevant, and what weight should be apportioned to them, is a matter of judicial discretion. As a result, significant deference is owed to a determination made by a judge at first instance. Accordingly, an appellate court must act with restraint and may only intervene where there has been "a material error, a serious misapprehension of the evidence, or an error in law". Citing Van de Perre, the SCC said that this narrow scope of appellate review means that, absent a material error, the Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge. An appellate court is therefore 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. The Court found that the Van de Perre standard reflects the significant deference that the decision of a judge at first instance has to a child's best interests and absent something specific in the governing legislation, this same standard applies to custody decisions pursuant to child protection legislation.

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