An Ontario court recently examined a request by a non-parent for access to a child, and found that it would not be in the child’s best interests to have continued contact with his mother’s ex-boyfriend (who was not his biological father).

What Happened?

The man in question (the Applicant) was not the biological father of the child and had not had any access with the child since November 2016 (when the child had been 20 months old). He filed a motion seeking reasonable and generous access to the child, including:

• One week of each month;
• In the alternative, four days a month;
• One half of all holidays and special days (including Easter, Thanksgiving, and Christmas).

The Applicant and the child’s mother (the Respondent) had met online in February 2015. They began to live together in May of that year, and separated six months later in November 2015. The Respondent presented evidence that she provided for the child and herself with money received from Ontario Works and the Child Tax Benefit. There is no evidence that the Applicant provided any financial support for the child after the separation, although he argued that such support was offered and rejected. The Applicant claimed he is prepared to pay child support.

Immediately following the separation, the Respondent agreed that the Applicant could have limited access to the child (one week per month). After six months, this was reduced to five days per month. The Respondent was initially hopeful that parties would reconcile and she, therefore, wanted to retain a relationship between the child and the Applicant. Once she realized that a reconciliation would not happen, she continued to permit access so that the child could have a “positive male role model”. After some time, she concluded that contact with the Applicant was having a serious negative impact on the child’s behavior and ended the contact completely in November 2016.

The Respondent argues that the child has no memory of the Applicant, and instead regards her new partner as his father. She opposes any attempt by the Applicant to resume contact with the child.

The Law

Questions of access in family law are always answered in terms of what is in the best interests of the child in question. In this case, the court noted that there was very little evidence to support a finding that a continued relationship between the Applicant and the child would be in the child’s best interests.

In considering what would be in the child’s best interests in this case, the court considered caselaw on other situations in which a non-parent sought access to a child with whom they had no contact for a prolonged period. In doing so, the court noted that:

• A non-parent does not have presumptive access to a child or a right to maintain an ongoing relationship with a child;
• The onus (i.e. responsibility) is on the non-parent seeking access to prove that it is in the child’s best interests to have such access or such a relationship;
• A court will not usually grant access to a non-parent if the custodial parent (i.e. the parent with custody rights) objects and there is no benefit to the child from ongoing contact;
• Courts are reluctant to allow a relationship to develop between a child and a legal stranger that may put undue stress on a custodial parent or interfere with the custodial parent’s day-to-day life.

The Decision

The court went on to say:

I have no doubt that the Applicant is disappointed to have lost his relationship with [the child]. The material he has put before the Court demonstrates his lack of insight as to how his proposals would work in [the child’s] best interests. Although this motion seeks interim access, he seeks joint custody in his application. There is no acknowledgment that he lives over 100 km away; he does not address the impact of removing [the child] from his new family; other than to dispute her allegations, he is silent on the effect of his conflict with the Respondent; he does anticipate the anxiety or confusion that this renewed contact would create for a child who has, at best, little memory of him. There is no plan other than a desire to resume the status quo prior to the termination of access.

The court went on to conclude that the Applicant’s continued involvement with the child would not be in the child’s best interest. The Applicant’s motion was dismissed.

If you have questions about your rights following a separation or divorce, contact Gelman & Associates. Our knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters.

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