The mother of the child is a single white Canadian living in Vancouver. The father is an Afro-Canadian professional basketball player and is married to another woman since 1991 with twin daughters. After an affair, the child is born, following which the father and his wife go back to North Carolina. When he returns to Vancouver he continues the affair. The mother sued for custody when child was 3 months old. The trial judge grants her sole custody with the father granted access. The Court of Appeal overturned the judgment, granting custody to the father and the stepmother with generous access. The mother appealed to the Supreme Court.
- To what degree should race and culture be considered in a custody application?
Appeal allowed; decision of the trial judge restored.
Bastarache, writing for the court, maintained that the best interests of the child remains paramount. Race can be an important factor in this consideration, but it depends greatly on the facts of a given case, rejecting the arguments of the interveners who said it was crucially important. Here there was no evidence led that race was an important factor. Evidence of race relations in the relevant communities may be important to define the context in which the child and his parents will function. The weight to be given to all the relevant factors is a matter of discretion, but discretion must be exercised with regard to the evidence before the court.
- Racial identity is merely one factor that may be considered in making decisions about the best interest of the child.
- Any argument about racial socialization and personal identity with regard to race must be based on the evidence before the court.