Conduct of Child Services is a Fair Consideration in Custody Hearings

Matters of child protection are extremely fraught and stressful for any family, and they can have a very significant and long-term impact on a child’s overall wellbeing and relationships. When the Director of Children’s Services intervenes by apprehending a child, they have a great deal of authority in deciding where the child will live and who is permitted to have access to them. These decisions are often made with a child’s best interest at the forefront but, in some cases, it is possible that the conduct of the Director may be called into question. A Director’s decisions can have a significant impact on the child’s future and may unfairly benefit or disadvantage certain parties in a dispute over permanent custody.

This was the situation in a recent Supreme Court decision, B.J.T. v. J.D., in which the Court was required to consider whether a hearing judge had unfairly focused on a Director’s conduct when analyzing the best interests of a child in a custody matter. The hearing judge found that the Director had favoured the child’s birth father by creating a status quo that would benefit him when the matter went before a court. On appeal, the higher court determined that this consideration had tainted the judge’s findings and reversed her decision. The matter then proceeded to the country’s highest court, where the Court reiterated that a Director’s conduct can, in fact, have a significant impact on a best interests analysis, and is therefore a fair point of consideration in a custody matter.

Grandmother Took on the Role of Primary Caregiver

In the case at hand, the child’s mother and father married in 2012 and lived together in Alberta. In 2013, there was an alleged incidence of family violence, which prompted the mother to leave the family home and move to Prince Edward Island. The mother was pregnant at the time, but the father was unaware. He remained ignorant to the fact that he had a child even after the child was born in October 2013. The mother was the primary caregiver and parental figure to the child for the first few months of his life, but significant mental health issues prevented her from providing adequate care for her son. The child’s maternal grandmother then moved to Prince Edward Island and into the mother’s home, where she became the child’s primary caregiver. She remained in the home for two years, providing financial support to the family and day-to-day care of the child.

The grandmother left for a year and then returned in March 2017, resuming her role as the child’s primary caregiver. However, in August of that year, the mother’s mental state began to decline and refused further contact between the child and his grandmother. Shortly afterward, the Director of Child Protection for Prince Edward Island apprehended the child and was granted temporary custody.

Father Who Had Never Met Child Given Priority Over de facto Parent

The grandmother then entered into a temporary foster care arrangement with the Director, allowing the child to reside with her. Meanwhile, the Director had reached out to the father to inform him that he had a son. The father indicated that he wanted his son to come and live with him in Alberta and made arrangements to travel to Prince Edward Island to meet him. Before his arrival, the grandmother informed the Director about the allegations of violence against the father. Nevertheless, the Director proceeded with allowing the father to visit with the child and supported the father’s application for permanent custody.

The grandmother filed an application to be designated as a parent under the provincial Child Protection Act. The following day, the Director terminated the grandmother’s care arrangement, and removed the child from her care. The child was first placed with foster parents before being sent to live with the father in Alberta indefinitely.

Grandmother Receives Custody Once Again

The grandmother and the father each sought permanent custody of the child. The hearing judge granted the grandmother’s application for permanent custody, noting that it was in the child’s best interests for the following reasons:

• After undergoing an analysis of the various factors impacting the child’s best interests, the judge found both the father and grandmother would provide the child with a loving and secure home. However, the grandmother would continue to promote a relationship between the child, the father and other family in Alberta, but the father would not do the same with respect to the family in Prince Edward Island, unless ordered to do so by a court; and
• The Director had opted to support the father’s application for custody without even considering the grandmother as an option. The Director’s conduct had disadvantaged the grandmother by establishing a status quo in the father’s favour. The judge also determined that this conduct created a bias in the father’s favour with respect to his expert witness, who recommended that the father be awarded custody.

The father appealed the hearing judge’s determination. The Court of Appeal reversed the decision, awarding permanent custody to the father. The Court of Appeal found that the hearing judge had put too much significance on the Director’s behaviour and not enough priority on the father’s status as a natural parent, which should have resulted in the hearing judge favouring his application over the grandmother’s.

Child Service Agency Conduct a Valid Consideration in a Best Interest’s Analysis

One of the key issues the Court of Appeal had with the hearing judge’s decision was the focus on the conduct of the Director, which the Court found to be “an irrelevant consideration” in an analysis of the best interests of the child. The Supreme Court felt that the hearing judge had let her distaste for the Director’s conduct cloud the outcome.

The Supreme Court disagreed with this finding. It confirmed that all factors considered as part of a best interests analysis are of equal importance, and the weight of each factor as applied to a specific case is a matter of judicial discretion. In reviewing a decision which considered the best interests of a child in a matter of custody specifically, a high degree of deference is owed to the lower court’s decision. Interventions may only happen in cases where the lower court committed one of the following:

1. A material error;
2. A serious misapprehension of evidence; or
3. An error in law.

In this case, the Supreme Court went on to say that there is no established principle preventing a court from considering the actions of a child protection agency as part of the consideration of a child’s best interests. In fact, such consideration may be necessary in some cases, as the 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”.

The Director has complete control over where the child lives and goes to school, and who has access to them. The judge was therefore free to consider the fact that the Director’s actions had clearly favoured the father’s relationship with the child over the pre-existing relationship he had with his grandmother.

Empathetic and Experienced Representation in Child Custody and Apprehension Matters

The family law lawyers at Mincher Koeman often represent clients in issues involving the determination of child custody, including parenting time or decision-making disputes. We also have considerable experience working with families facing issues of child apprehension and protection matters. If your child has been apprehended, there are strict timelines at play, and you should seek immediate legal advice. Our lawyers have the experience necessary to assist you throughout this process and will work to protect your rights and the rights of your child. Please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.