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Family Law - Custody and access - Considerations - Best interests of child - Contest between parents and non-parents

Thursday, January 26, 2017 @ 7:00 PM  


Appeal by the potential adoptive parents from trial judgment granting the biological father custody of his five-year-old child. The appellants were the child’s caregivers since the child was one year old. The child was born six months after the biological parents separated. The father had not consented to the adoption and secured access to the child within a few months of the child’s placement for adoption with the appellants. The trial judge accepted the recommendation of an assessor that the child be placed with the father. Both the father’s and the appellants’ experts acknowledged that the child was experiencing separation anxiety, but differed on the severity of the child’s experience, what long-term effect it might have, and the best way forward in the matter. The trial judge found that the child bonded and attached to both the appellants and the father, saw them all as parents, and felt at home in both places. He accepted the child’s separation anxiety was part of the normal process of a child having different parental visitations and that separation from one attachment was not necessarily destructive to a child in the long term if the child moved to another attachment in a nurturing environment with professional support. The trial judge concluded that it was in the child’s best interests to transition to the father’s home, aided by the professional assistance of a counsellor. In determining the child’s best interests, the trial judge considered the combination of the father’s long-term parenting ability and experience, direct blood connection to the child, custody of other siblings, proximity to other family members, their connection to Nakoda culture, and the father’s leadership role in the community. The appellants argued that the trial judge improperly weighed the relevant factors in determining the child’s best interests.

HELD: Appeal dismissed. The trial judge explored the relevant principles and conducted the best interests of the child analysis with detailed attention to each of the relevant components, such as the quality of the child’s relationships with the parties and relevant others, biological connections, siblings, the respective home environments, parenting capacity, the child’s personality, character and emotional needs, the child’s physical, psychological, social and economic needs, opportunities in each home, future plans for the child, and the concept of the psychological parent and the impact on the child of a change in custody. His ultimate determination that the child would have a wealth of opportunities in either home, but greater access to family relationships, assistance, guidance and tutelage with the respondent, given the depth of the family community that surrounded the child there, was supported by the evidence. The trial judge did not place unwarranted emphasis on the biological connection and properly considered the cultural issues. The trial judge did not err in accepting the opinion of the father’s expert in preference to the opinion of the appellant’s expert. The father’s expert was the only expert who had investigated both sides of the matter, who had witnessed the child in both homes and in the presence of the parental figures. He was the only witness capable of speaking to the level of attachment that existed between the father and the child. The trial judge was fully alive to the sensitive task of accommodating the child’s need for comfort and assurance in making a successful transition to the father’s primary care and crafted a careful and thorough plan incorporating a staged and gradual timetable. The trial judge’s findings went beyond continuity of care and touched on all the myriad considerations that had an impact on the child’s present and future well-being.