Child custody is not based on who the biological parent is, but instead who is deemed the best parent by the court.
I recently acted on a case where the gentleman initially believed a child he was raising was his child. When the child was two years old, the gentleman discovered that his wife had been having an affair with another man by whom she had a second child. This birth sparked the separation, but what he did not know was that the older child, who was by then the age of two, was also a child of this affair. He claimed custody not caring if the child was his biologically or not because he and his little girl adored one another.
When an intensive psychological assessment confirmed the nature of this relationship between child and who I will refer to as the stepfather, a 50/50 parenting arrangement was worked out between the biological parents and the step-father
Some years later when the child was ten years old, the biological parents challenged this 50/50 arrangement.
There was a second very detailed clinical assessment of the parenting abilities of the biological parents on the one hand and the step-father and his then new wife on the other, as ordered by the Court. The two assessors, being a clinical psychologist and a Master’s of Social Work, jointly found in favour of the step-father and his new wife. This was based on the best interest test, in effect, the child was better off in their household then in the household with the biological parents.
In a trial decision decided by the Honourable Mr. Justice Nelson, the biological parents lost and sole custody was awarded to the step-father. The biological parents received access on alternate weekends and very restricted holiday access and half the summer.
On an appeal by the biological parents to the Court of Appeal, they lost in a unanimous decision by a three Judge panel. The step-father as psychological parent, won custody as this was in the best interests of this child.
The biological parents, before the Court of Appeal and at trial, raised their rights as biological parents and their blood tie to the child. The biological parents also raised that there was a sibling in their household and that an award of custody to the step-father would result in the separation from the sibling. Interestingly, it was further held by both the trial Judge and the Court of Appeal, who confirmed that decision, that the relationship with the sibling was less important than the relationship with the parents. This fact had been confirmed not only by the two assessors, but also by a psychiatrist brought in by the biological parents to critique the report of the two court ordered assessors.
What do we learn from this case?
We learned that the best interest of the child, in effect, their psychological and physical Well being; their physical needs for care; their need for peace and tranquility; their need for nurturing; their need to be free from the risks of parental alienation (which was being practiced by the biological parents against the step-father and his wife) trump the blood ties that the child enjoys with its birth parents. It is not the rights of the biological parents; instead it is the needs of the particular child that are of pre-eminent importance.
This case involved an extreme case of parental alienation and indoctrination, where the biological parents engaged in total and complete war against the step-father and his wife. They prayed over the child every time she left their household on the 50/50 exchange of time. They weighed her each time she came back to their household claiming that the step-father and his wife didn’t feed her properly. They insisted on going daily to the school on the step-father’s time with the child to check up on the child and the biological father went ballistic at the school on more than one occasion when the child drew pictures of her family which showed the step-father in the role of dad.
Few cases are this extreme in the fact situation, however, I believe that as a result of this case, that an argument could be raised in a situation, for example, where a biological parent was raising the child with a new spouse and on the death of the biological custodial parent, the step-parent claimed custody against the surviving biological parent to keep the child in their care. It also applies in cases where a loving step- parent has a deep bond with the child and on separation from their spouse wishes to keep custody of a child they have helped to raise who is not biologically theirs.
In this day and age of blended families, I believe this case in very important. The case citation is Khan v. Kong (2007), 2007 Carswell Ont 8983; 50 R.F.L. (6th) 31, for the trial decision and 2009 Carswell Ont 39, 2009 ONCA 21;  W.D.F.L. 613; 64 R.F.L. (6th) 241 for the Court of Appeal decision.
Judith Holzman is a collaboratively trained family lawyer who has practiced for over 33 years in the Toronto and York Region area. She has participated in amendments to the Family Law Act(provincial) and the Divorce Act (federal) in the area of religious divorce.