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An Ontario court recently dismissed a same-sex parent’s application for temporary access.
What Happened?
The parties, S and H, were both 18 years old. They had an intermittent, same-sex romantic relationship since at least 2014.
S became pregnant with a child while she was in a relationship with her then boyfriend. The child was born in October 2016.
At that point, it is unclear what the nature of the parties’ relationship was or the roles played by their respective parents. However, when the child was at least three months old, S acknowledges that she began referring to H as the child’s “other mom”.
By May 2017, the parties became engaged. They moved in together at the end of July 2017. Throughout this time (and thereafter) S maintained sole decision-making authority over the child. However, as of July 2017, H began caring for the child on a full-time basis.
The parties separated in October 2017, at which point H’s role was limited to having access to the child two to three times per week.
In November 2017, after receiving a formal letter from H’s lawyer requesting defined access time, S cut off all communications between H and the child.
H brought an application for temporary access to the child.
Which Legal Principles Apply in This Case?
The court began by explaining that its focus had to be on what was in the child’s best interest while considering the criteria enumerated in section 24(2) of the Children’s Law Reform Act.
The court then outlined a number of legal principles it had to take into account, including that:
- A non-parent does not have a presumptive right to access or to maintain an ongoing relationship with a child. The onus is on the non-parent seeking access to prove that it is in the child’s best interest to have such a relationship.
- It is not ideal to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent.
- Determining what is in a child’s best interests should be accomplished by carefully considering the facts of each case (rather than by focusing on the status of each adult in relation to the child).
- Save for exceptional circumstances, a parent’s right to make decisions and judgments on their children’s behalf should be respected, including decisions about who, how often and under what circumstances a child may see someone.
In addition, the court noted that it had to consider a number of factors when determining if access is in a child’s best interest, including:
- The love, affection and emotional ties between the child, the applicant and the applicant’s family.
- The child’s views and preferences.
- Whether there is a stable home environment.
- The applicant’s ability to provide for the child.
- The permanence and stability of the applicant’s family unit.
- The applicant’s ability to act as a parent.
- The relationship by blood or through an adoption.
The Court’s Decision
In dismissing the application, the court noted that the onus was on H to prove that it was in the child’s best interest for her to have access. The court concluded that while H was in a caregiving role at least from July to October 2017 (and likely even longer), the evidentiary record did not demonstrate that there was an important pre-existing relationship with the child that needed to be maintained. Specifically, the court found that:
- H’s age and the fact that she had been limited in her opportunity to be in a caregiving role worked against her.
- While H cared for the child as an infant, it was not possible to conclude that she had the ability to act as a parent for the child at this stage of her life (i.e., now that the child was approaching two years of age).
- There was no doubt a risk that the access might interfere with S’s day-to-day life, and it was unclear if it could easily be accommodated. The absence of a real access proposal made it impossible to decide on the best schedule when considering the current schedules of the parties and H’s parents.
Furthermore, even though it was by no way H’s fault, the court remarked that it could not ignore the passage of time since she had had contact with the child. In the end, the court was not able to conclude that the requested access was in the child’s best interest.
Lessons Learned
There are many factors you must consider if you are thinking of applying for access to a child.
If you have questions about custody and access, or your separation or divorce in general, contact Gelman & Associates. Our lawyers – who are knowledgeable and compassionate, but also tough when necessary – 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.
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