Canadian Journal of Family Law

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Statistics suggest that an increase will occur in the number of custody disputes involving mixed race children in Canada. This article considers the extent to which the fact that a child is mixed race factors into child custody determinations, and how courts consider it. It also discusses whether considering a child's mixed race heritage is helpful in the child-custody context. The article first explains the use of "race" and "culture" in the Canadian context, then reviews the literature on mixed race children and the law, before examining legislation on the "best interests of the child." The focus of the paper is an analysis of reported Canadian custody cases in which a child's mixed race heritage was mentioned in the written judgment, both before and after the leading case, Van de Perre v. Edwards. The case-law analysis considers questions such as judicial racism, "race-matching," and how race and culture are weighed against other factors relevant to a child's best interests. The conclusion offers suggestions for how courts should deal with custody disputes over mixed race children, based on trends identified in the case law. While racialized parents are not inevitably best suited for primary custody of mixed race children, it is key for any parent seeking custody to demonstrate their ability to foster the healthy development of a child's multifaceted identity. More directive legislative language might be useful in order to ensure that at least some judicial attention is paid to race and culture. Finally, taking judicial notice of the relevance of race would also be helpful in acknowledging the persistent existence of racism in Canadian society, as would a more diversified Canadian judiciary.