Father loses custody battle to guardians

Sask. ruling goes against biological parent

The Globe and Mail, by TENILLE BONOGUORE, January 30, 2007

The guardians of a baby boy yesterday were chosen over the biological father in a Saskatchewan custody battle that lawyers say reinforces the fact that having a child does not mean one gets to raise that child.

The 34-year-old biological father, who cannot be named, was denied custody in a 35-page judgment and was banned from seeing the nine-month-old boy for a year so the child could have "familial calm."

The case pitted the father, who said he never agreed to the biological mother's decision to give up the child, against the guardians who have raised the child since birth.

When the mother realized she was pregnant, she sought out family friends to raise the child. The judgment states the woman did not believe the appellant was the biological father, but DNA tests later proved that to be the case

In his judgment yesterday, Mr. Justice Shawn Smith of the Saskatchewan Court of Queen's Bench said the unofficial adoption was now in the best interests of the child.

"It is clear that they [the guardians] present an environment that will best provide for his health, education, emotional well-being, opportunity for training and economic and intellectual pursuits," Judge Smith wrote.

The judge said the biological father could have a positive presence in the boy's life, but not in a parental way.

Regina-based family law specialist Brad Hunter, who was not involved in the case, said the court's decision set a precedent and should warn biological parents about what can happen when seeking custody.

"In recent cases, the courts have been far more deferential to parents," Mr. Hunter said.

"In this case, the judge placed limited weight on the biological parent's rights. It certainly is contrary to the trend that had increased the rights of biological fathers. The trend has been to put both parents on equal footing.

"It used to be that the biological father had few rights. [It's hard to say] whether this is a new precedent or whether it's a throwback," he said.

But University of Saskatchewan lecturer Greg Walen says the case is consistent with provincial law and trends.

"He [Judge Smith] did the right thing at the end of the day," Prof. Walen said. "I think there's an attitude out there that, all things being equal, a child should be placed with a biological parent.

"But when the scales are so heavy in one favour, it shows a judge is willing to say those ties are not enough. Don't assume that because you are the biological parent of a child you have an automatic right to custody."

But the decision has sparked major alarm for children's rights activists, who say it could pave the way for any person to challenge a biological parent for custody of a child.

The Canadian Children's Rights Council president asked the RCMP to investigate the boy's biological mother for child trafficking, and says granting custody to the guardians goes against the United Nations Charter on the Rights of the Child.

"This is a dangerous case. It means anybody can challenge you on the basis they can provide a better home for the child. This was not a test about him being such a poor parent. This was a test of one side being better than another."