Non-Parent Access to a Child

Geisler v Georgeoff 2017 ONSC 5746

Facts

The Applicant and the Respondent met online in February 2015.  The couple began living together in May 2015 and separated six months later in November 2015. The Respondent had one child from a previous relationship.  Immediately following the separation, the Respondent agreed to limited access between the Applicant and child.  The Respondent unilaterally terminated access between the Applicant and the child in November 2016.  Following which, there was no contact between the Applicant and the child.

The Applicant brought a Court action seeking access to the now, 2 ½ year old child. The Applicant is not the biological father of the child and had not had any access with the child in almost a year.  Notably, the child was 20 months old when he last saw the Applicant; the child had virtually no memory of the Applicant.

Analysis

Section 24 of the Children’s Law Reform Act holds that, “custody of or access to a child shall be determined on the basis of the best interests of the child”.

Justice Beaudoin held that there was very little evidence to support a finding that a continued relationship between the Applicant and the child was in the best interests of the child.  He further noted that prior caselaw holds that “a non-parent does not have a presumptive right to access or to maintain an ongoing relationship with the child”.  Specifically, the onus is on the non-parent seeking access of the child to prove that it is in the child’s best interests to have such a relationship.  Notably, the courts are reluctant to allow a relationship between a child and a “legal stranger” that might put undue stress on the custodial parent.

The Court recognized that the Applicant suffered as a result of the loss of his relationship with the child; however, the child did not suffer a corresponding loss.  Notably, “suffering” by the non-parent is not a basis for granting access.

Ultimately, Justice Beaudoin found that the Applicant’s continued involvement with the child would not be in the child’s best interests. Consequently, the Applicant’s motion was dismissed.

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