Non-parent Seeks Custody Of Child

Written on behalf of Arbesman Hamilton LLP

It’s natural that most cases involving custody and access disputes involve the parents of children. Occasionally, though, someone who isn’t a parent will seek custody of a child. This was the case in a decision recently issued by the Ontario Superior Court of Justice.

The background

The applicant in the case was not the biological father of the child, who was born on February 5, 2015. In fact, he had not seen the child since he was 20-months-old in November 2016. The applicant met the mother online in February 2015 and began living together about three months later in May 2015. They separated in November 2015.

The parties’ living arrangement was unusual. As the court explains,

“While the Applicant alleges the parties were in a common-law relationship, the Respondent swears that while they were residing together, the Applicant had her sign a lease saying she was renting his place so that Ontario Works would pay money for the rent. The Applicant was then using his parents’ home as his address. This evidence is not contradicted nor is there any evidence to refute her claim that she provided for Quinten and herself with the money she received from Ontario Works and the Child Tax Benefit.”

The separation

Following the separation, the applicant claimed he offered to provide financial assistance to the respondent following their breakup, though there was no evidence of this. Regardless, he told the court he was prepared to pay child support.

The mother had agreed to let the applicant see the child one week per month, but the schedule was reduced to five days per month after six months. The mother told the court she hoped her and the applicant would reconcile, and as such, wanted to allow the child to maintain a relationship with him.

After a while she came to the understanding that the relationship between the child and the applicant was having a negative impact on the child. She believed the applicant was treating the child as a buddy as opposed to a child and stopped allowing him to see the child in November 2016.

A new relationship

The mother told the court she had become involved in a new relationship, and had a child with her new partner. She works inside the home and said the child sees her new partner as his father. Furthermore, she said the child has no recollection of the applicant. She also testified that the child’s behaviour improved after visits with the applicant stopped.

The court’s analysis

The court determined that while it was clear the applicant had an interest in maintaining a relationship with the child, there was very little evidence to support a finding that it would be in the best interests of the child to permit one.

In dismissing his application, the court wrote,

“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.”

If you are contemplating a separation, or are already in the process, and
there are children involved, your first step should be to consult with a family
lawyer who has experience with custody and access matters. Arbesman Hamilton LLP and
its predecessors have been helping clients in Toronto since 1953. Our lawyers
provide clear, practical advice so that clients can make informed decisions
about their parental rights. Contact us online or at 416-481-5604 to
book a consultation.