When parents and grandparents in British Columbia think of child custody and guardianship laws, they often consider it an issue of parental rights. But many children in modern BC households are not raised by their parents, and custody can be given to grandparents, aunts, uncles and even non-relatives in certain situations.
What happens when a grandmother and grandfather apply for custody to the exclusion of a child’s natural mother and father? The result can lead to extremely contested custody battles, as in the case of N.L.W. v. T.M.W. 2006 B.C.J. No. 1338. In that case, the grandmother had raised a child for ten years before relocating with the child, which caused access issues to the child’s natural parents. The British Columbia Court of Appeal clearly said that custody is not an issue of parental rights, and there was no preference to the biological parents in the circumstances.
Theses cases have followed the law set in part by Lorne Maclean the winning counsel in Young v. Young which is the leading 1993 Supreme Court of Canada child custody decision where the court concluded that a natural parent’s rights are not absolute.
If you are a grandparent or non-parent seeking custody of a child, book an appointment with a MacLean Family Law Group lawyer at our Vancouver, Surrey, Fort St John or Kelowna BC office to discuss your options in this complex, evolving area of Children’s Law. You can also obtain our help anywhere in BC by calling 1 877 602 9900.
The critical part of the decision from the BC Court of Appeal on the issue of grandparent custody is set out below:
At paragraph 67, the Court said:
It seems clear to me that His Honour was of the view that the biological Parents’ rights was the paramount factor in this case, elevating them (wrongly) to a position of critical importance in determining the best interests of the Child… His Honour relies on earlier cases referred to by him, where the dispute was between a parent, or the parents, and the grandparents in the first instance, as to who should have custody. In those cases it is said, in effect, that all things being equal, in a contest for custody of a child, custody should be awarded to the parents, unless there are grave reasons for concern about the welfare of the child being with the parents. But in the cases referred to, the child had not lived with the grandparents and received excellent care from them for a lengthy period of time.
The Court concluded that the child’s grandparents were the best suited to care for the child and overturned the trial judge’s decision to grant custody to the biological parents. In support of the Court of Appeal’s decision to award grandparent custody, the Court at paragraph 107 said:
It will be seen that in my opinion when weighing the importance of ten years of exemplary care and nurturing by the Grandparents, and the continuing stability and continuity of such care, against the inconvenience and perhaps some diminishment of the Respondents’ access, as a result of the relocation, the former argues most strongly in favour of the Child remaining in the care and custody of his Grandparents. In my view the Trial Judge erred in taking away the care and custody from the Grandparents and granting it to the biological Parents in the circumstances of this case. In doing so the Learned Trial Judge simply ignored ten years of exemplary care and nurturing by the Grandparents, and the findings made by the First Trial Judge, all of which were in the best interests of the Child, in favour, in effect, of the blood ties of the Respondents to the Child, and their unknown ability to satisfy the interests and needs of the Child, and full access to the Respondents in a continuous hostile and stressful environment, which of course is not in the Child’s best interests.
It may be a surprise to some Family Law clients in British Columbia that there are circumstances where there is no preference to a child’s parents in a custody dispute, but as noted at paragraph 97 of N.L.W., in A.H.P. v. C.A.P., 1999 BCCA 203, the BC Court of Appeal stated that the biological parents’ rights are only one of several considerations, including stability, a lengthy status quo and bonding with the custodial parents.
