Child Access in Same-Sex Relationships: Villeneuve v. Bell, 2018 ONSC 4518

Notions of the “traditional” family unit have evolved over time. Accordingly, the judicial system needs to adapt to be better equipped to adjudicate new issues that arise. In this case, the age, biological connection, and involvement of the party in the child’s life were the determining factors.

Background

Both the Applicant and the Respondent are 18 years of age. The parties began an intermittent romantic relationship in 2014. The Respondent had a child born in 2015. The biological father of the child appears to not be playing an active role in the child’s life, but the evidence concerning the biological father is unclear.

The Applicant and the Respondent became engaged in May 2017 and moved in together at the end of July 2017. However, the affidavit evidence is unclear as to the Applicant’s caregiving role with the child. The parties’ relationship ended in October 2017.

The Applicant’s role was limited to access 2-3 times per week with the child. In November 2017, after receiving a formal letter from the Applicant’s lawyer requesting defined access time, the Respondent cut off all communications between the Applicant and the child. At this point, the child has not seen the Applicant in approximately 8-9 months. The Applicant brought a motion for temporary access to the child. The Respondent, who is the biological mother of the child, opposed access in any form.

Analysis

It was difficult for the Court to evaluate the Respondent’s credibility regarding the Applicant’s care for the child while the Respondent was working full-time. It was apparent that the Respondent was working full-time in July 2017, which would have required the Applicant to be at home with the child. The Applicant also saw herself as the child’s “other mom.” However, Justice Labrosse stated that the Respondent treated the Applicant as a “glorified babysitter” and sought to minimize all other aspects of the relationship. Nonetheless, despite the volatility that arose after the relationship broke down, the judge stated that the Court’s focus must be on the child’s best interests.

The judge embarked on an analysis pursuant to section 24(2) of the Children’s Law Reform Act. The judge found that there was no doubt that both parties cared for the child during the first year of her life and that the Applicant was a big part of providing a stable home environment for the child. However, the judge found that the Applicant’s limited opportunities to be a caregiver for the child worked against her, as she had only cared for her as an infant and the child is now nearly two years old. Additionally, the age of the Applicant, and her lack of a permanent, stable family unit of her own also worked against her.

The Applicant is left to rely on her parents’ family unit as the location for the access visits. It was unknown how the Applicant’s circumstances would change, because the court had no evidence as to the Applicant’s career, employment, or living arrangements. The judge also found that the Applicant has not had the opportunity to act as a parent for the child. The onus was on the Applicant to prove that it is in the best interests of the child to have access with the Applicant.

Justice Labrosse was unable to conclude based on the evidentiary record that there was an important, pre-existing relationship with the child that needs to be maintained. While it is not the Applicant’s fault they were unable to contact the child, this passage of time ought to be considered in such cases. As such, the motion was dismissed. Ultimately, the evidentiary records before the judge were insufficient, and perhaps a more complete record produced at trial would better illustrate the nature and bond created between the child and the Applicant.

If you have a case of your own, do not hesitate to contact our Ontario family law attorneys at Feldstein Family Law Group P.C. Your first consultation is free, so call us at (905) 581-7222, or fill out an online case evaluation form to get started immediately.

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