“In January 2018, a four‑year‑old child was apprehended by the Director of Child Protection in Prince Edward Island (“Director”), giving rise to lengthy child protection proceedings. The child’s parents had a turbulent relationship. They were married in May 2012 and then lived together in Alberta. In 2013, the mother left the father and moved to Prince Edward Island after an alleged incident of domestic violence. At the time, the father was unaware that the mother was pregnant. The mother struggled to care for the child after he was born in October 2013, as she battled significant mental health challenges. When the child was three months old, the maternal grandmother arrived in Prince Edward Island and, for approximately two years, lived with the child and the mother, supported them financially and provided daily care to the child. The grandmother left for approximately one year and then returned to Prince Edward Island in March 2017 and resumed her role as the child’s caregiver. This arrangement ended abruptly in August 2017 when the mother’s condition worsened and she refused to allow the grandmother to contact the child. A few months later the child was apprehended by the Director. A court found the child was in need of protection, and the Director was granted temporary custody of the child.
After the child was placed in the Director’s temporary custody, the Director entered into a foster parenting agreement with the grandmother and placed the child in her day‑to‑day care. The father was contacted by the Director in February 2019 and advised that he had a child. He wanted the child to live with him in Alberta and began to prepare for parenthood. He retained the services of an expert psychologist and flew to Prince Edward Island to meet the child in June 2019, where daily and then unsupervised visits were allowed by the Director. Shortly before his visit, the grandmother informed the Director about allegations of violence by the father. The Director continued to allow the father to visit the child and amended its application to support the father’s bid for permanent custody. During the father’s visit, the grandmother filed a motion for an order designating her a “parent” under the Child Protection Act, which was granted in early July. The next day, the Director ended the foster parenting arrangement with the grandmother and removed the child from her care, placing him with foster parents. Four weeks later, the Director sent the child to Alberta for a second visit with the father. The Director then decided to make the visit indefinite.
The grandmother and the father both sought permanent custody of the child. At a disposition hearing in Prince Edward Island, it was concluded that it was in the child’s best interests to be placed with the grandmother. The hearing judge found that the grandmother would promote the child’s relationship with the father and his family, but the father would not ensure the child would have a meaningful relationship with his family in Prince Edward Island unless ordered by the court. The hearing judge also found the Director’s goal was to assist the father to become the child’s parent without considering the possibility of the grandmother as the child’s guardian. A majority of the Court of Appeal reversed this decision and granted custody to the father. It concluded that the hearing judge considered an irrelevant factor, being the Director’s conduct, and failed to consider the father’s argument that as a natural parent, his custody claim should be favoured.”
The SCC (9:0) allowed the appeal and restored the order of the hearing judge.
Justice Martin wrote as follows (at paras.1-4, 52-53, 56-59, 67-68, 77, 88, 97-99, 113-114):
“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 (“Director”). At the disposition hearing under s. 37 of the Child Protection Act, R.S.P.E.I. 1988, c. C-5.1, 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, who had only learned he had a child when the boy was five years old and had only recently begun to have a relationship with him.
At the conclusion of the appeal, we unanimously allowed the appeal. We set aside the decision of the Court of Appeal and restored the order of the hearing judge awarding the permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the Child Protection Act. Under the terms of the hearing judge’s final disposition, the grandmother was immediately entitled to the custody and guardianship of the child in P.E.I., and the Director was required to return him to the grandmother within two weeks of the decision. However, with the school year under way, to mitigate the foreseeable disruption and stress to the child, the Court permitted him to remain with the father in Alberta until March 21, 2022, which marked the commencement of the Alberta spring break. Thereafter, the child was to be returned to P.E.I. at the expense of the Director.
This judgment was made without prejudice to any rights that either party may have to make an application to the Supreme Court of Prince Edward Island relating to all questions of custody and access.
Below, I provide the reasons for this Court’s judgment, explaining why the hearing judge made no legal errors that warranted appellate intervention and why that initial decision was entitled to deference.
First and foremost, this appeal turns on the due operation of appellate deference in child custody matters. The parties argued about what the applicable standard of review should be when assessing a hearing judge’s conclusions concerning custody in a child welfare context. In my view, Van de Perre v. Edwards, 2001 SCC 60,  2 S.C.R. 1014, at para. 11, citing Hickey v. Hickey,  2 S.C.R. 518, at para. 12, governs: an appellate court is not entitled to intervene unless there has been “a material error, a serious misapprehension of the evidence, or an error in law”.
The best interests of the child is the guiding principle in most custody matters, as it is under s. 2(2) of the Child Protection Act. To assess the best interests of a child, courts apply a multi-factorial legal standard, although different statutes may articulate the individual factors in slightly different ways. It is a highly contextual and fact driven exercise that involves a high level of judicial discretion: a case-by-case consideration of the unique circumstances of each child is the hallmark of the process. Those factors include “not only physical and economic well-being, but also emotional, psychological, intellectual and moral well-being” (Gordon v. Goertz,  2 S.C.R. 27, at para. 120, per L’Heureux‑Dubé J., dissenting, citing J. D. Payne, Payne on Divorce (3rd ed. 1993), at p. 279).
The leading decision on the appellate standard of review for custody and access decisions is this Court’s decision in Van de Perre. It provides that such decisions are inherently an exercise of discretion (para. 13). As a result, 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” (Hickey, at para. 12; Van de Perre, at para. 11). An omission is only a material error “if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion” (Van de Perre, at para. 15).
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” (Van de Perre, at para. 12 (emphasis deleted)). 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 Van de Perre standard reflects the significant deference that the decision of a judge at first instance as to a child’s best interests attracts, owing to the polymorphous, fact-based, and highly discretionary nature of such determinations (Hickey, at para. 10). In my view, absent something specific in the governing legislation, this same standard applies to custody decisions pursuant to child protection legislation.
Nothing in s. 2(2) of the Child Protection Act supports or suggests a different standard of appellate review. Further, the same justifications expressed in Hickey that animated significant deference to child support awards apply with equal force to custody disputes under child welfare legislation. In both cases, what is needed is an approach that promotes finality in family law litigation, recognizes the importance of the highly discretionary nature of the decision and the appreciation of the facts by the judge at first instance who heard the parties directly, and avoids giving parties an incentive to appeal judgments in the hope that the appeal court will have a different appreciation of the relevant factors and evidence (Van de Perre, at para. 11; Hickey, at para. 12).
While judges must not lose sight of the child’s best interests, they should also not fear appellate intervention for exercising their supervisory functions by referring to or reviewing a child protection agency’s conduct. Provided the focus remains on the applicable legal principles, it is in everyone’s best interest that the checks and balances established in child welfare legislation are front of mind for all decision makers, including judges undertaking a best interests analysis.
In addition to the supervisory function of the courts, a child protection agency’s conduct can provide crucial context for understanding the status quo and the position taken by the agency in the proceedings.
In addition to fulfilling the court’s oversight role and informing background considerations, the hearing judge could also turn to the Director’s evidence and conduct to allow her to properly assess (1) the claims made by the father and the grandmother as to their appetite and ability to facilitate access with the other parent, and (2) the impartiality of the expert witness and the weight to be given to her evidence.
Courts have gradually moved away from an emphasis on parental rights and biological ties in settling custody matters, whether arising from a private dispute, an adoption, or the state’s apprehension of children in need of protection.
In the end, the child’s best interests is the paramount consideration in child protection proceedings (G. (J.), at para. 72). State apprehension is warranted when maintaining a child’s existing family relationship is no longer in the child’s best interests (Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.),  2 S.C.R. 165, at p. 203). This aligns with the balance that child protection legislation attempts to strike between a child’s best interests and preserving their existing family unit (M. (C.), at p. 196; see also M. J. Schlosser, “Third Party Child-Centred Disputes: Parental Rights v. Best Interests of the Child” (1984), 22 Alb. L. Rev. 394, at p. 409).
In any event, the concern in the preamble for ensuring children are removed from their parents only when others measure have failed is not in play when the state is not seeking custody, as is the case here.
To sum up, the applicable statutory factors in this case do not direct a court to weigh biology in the assessment of a child’s best interests. Indeed, the omission signals that relatively less weight ought to be afforded this factor. But the statutory factors are non-exhaustive. The question remains, then, whether it is within a court’s discretion to assign weight to biological ties as a non-enumerated factor.
Pursuant to this Court’s judgment issued from the bench on December 2, 2021, and for the above reasons, the decision of the Prince Edward Island Court of Appeal was set aside and the decision of Key J. to award permanent custody and guardianship to the grandmother pursuant to s. 38(2)(e) of the Child Protection Act was affirmed. W.D. was to remain with the father until March 21, 2022 and thereafter be returned to P.E.I. at the expense of the Director. The appeal was allowed with costs throughout to the grandmother. The Court’s judgment affirming the permanent custody and guardianship to the grandmother under s. 38(2)(e) of the Child Protection Act is binding and enforceable.”