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Sometimes a party will seek access to a child even when that party is not the child’s biological parent. In a recent case, an Ontario court considered a man’s request for access to a child that he had not seen for over a year. Interestingly, that child was also not the man’s biological son.

The Parties’ Story

The parties met online in February 2015, began living together in May 2015, and separated in November 2015.

The woman had a child, born in February 2015. The man was not the child’s biological father.

After separation, the woman agreed that the man could see the child. However, the woman ended the contact in November 2016 after she noticed that it was having a negative impact on the child’s behaviour.

The man brought a motion for access to the child.

The Mother’s Position

The mother explained that she was involved in a new relationship, and that the child regarded her new partner as his father. She claimed that the child had no memory of the man. As a result, she was opposed to the man resuming contact with the child.

According to section 24(2) of the Children’s Law Reform Act, in determining whether to grant access to a party, the court must consider all of the child’s needs and circumstances, including:

  1. the love, affection and emotional ties between the child and,
    • each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
    • other members of the child’s family who reside with the child, and
    • persons involved in the child’s care and upbringing;
  2. the child’s views and preferences, if they can reasonably be ascertained;
  3. the length of time the child has lived in a stable home environment;
  4. the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
  5. the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
  6. the permanence and stability of the family unit with which it is proposed that the child will live;
  7. the ability of each person applying for custody of or access to the child to act as a parent; and
  8. any familial relationship between the child and each person who is a party to the application.

Furthermore, case law provides that a non-parent does not have a presumptive right to access or to maintain an ongoing relationship with a child. Rather, the onus is on the non-parent seeking access to prove that it is in the child’s best interest to have a relationship.

A court will also not usually grant access to a non-parent if the custodial parent is opposed to access and there is no obvious benefit to the child. The paramount consideration is always the welfare of the child.

The Court’s Decision

In dismissing the man’s motion, the court concluded that it would not be in the child’s best interest for the man to continue to be involved in the child’s life. The court noted that the man lacked insight into how his proposals would work in the child’s best interests. Indeed, the court observed that the man had no plan other than wanting to resume the status quo before the woman had terminated his access to the child.

Lessons Learned

It is possible for a non-parent to be granted access to a child even if they are not the child’s biological parent, but in arriving at such a decision, the court will always consider the best interests of the child above all else.

If you have questions about your access rights, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.

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