As different family structures become more prevalent in society, the law must adapt to new social realities. This means rejecting the heteronormative nuclear family model in favour of a more diverse understanding of “family”.
It also means grappling with new legal issues that arise in situations involving, for example, multi-generational households, queer relationships, assisted reproductive technologies, and blended families.
In addition, there can be issues when a person who is not a parent wants to apply for access to a child.
Who can apply for access?
Although access disputes are usually between two parents, this is not always the case. Non-parent relatives, like grandparents and other family members, can also apply for access. So too can persons without a biological connection to a child.
Section 21 of the Children’s Law Reform Act allows a parent of a child or any other person, including a grandparent, to apply for access to a child.
Consider, for example, some recent cases in Ontario: a young woman who cared for her girlfriend’s infant daughter during the first year of her life and was referred to as the child’s “other mom”; a stepmother who treated her stepson as a member of her family for several years; or another stepmother who became known as the child’s “Momma” and was involved in all aspects of her care.
Best interests of the child
How will the courts respond when faced with an access request by a non-parent?
Ultimately, the test is the same as for parents: the focus is on what is in the best interests of the child. To determine the child’s best interests, the courts will consider all the child’s needs and circumstances, including the eight factors listed under s. 24(2) of the Children’s Law Reform Act.
Only the last listed factor, “any familial relationship between the child and each person who is a party to the application”, distinguishes parents from non-parents in the analysis. The nature of the relationship between the child and the person seeking access is not determinative; it is one of many factors to consider.
In analyzing a child’s best interests, the courts must carefully consider the facts of each case. As such, attempting to group the case law into categories like “grandparent cases”, “step-parent cases”, or “same-sex couple cases” is unhelpful.
A better way of categorizing the case law is to examine the actual connection between the child and the person seeking access. Did the person have a settled intention to treat the child as part of his or her family? Is the person seeking to maintain an important pre-existing relationship with the child, or are they requesting access in order to establish a meaningful relationship?
The courts will place greater weight on the parental autonomy of parents opposing access if the non-parent is a “stranger” to the child. The courts will not usually grant access to a non-parent if the custodial parent objects and there is no obvious benefit to the child from ongoing contact with the stranger. Otherwise, allowing a relationship to develop between the child and the stranger might put undue stress on the custodial parent, which may adversely affect his or her ability to meet the child’s needs.
The courts are becoming more and more open to non-traditional family structures, including when it comes to access. However, even if applicants feel like they have a good case to make when applying for access, ultimately it will come down to what is best for the child.
For more information about access and custody, contact our Family Law Group.