“When considering the perspective of the Applicant, who saw herself as Luna’s “other mom”, it is frustrating to see how this situation has unfolded. This is not, however, the criteria that is to be applied in deciding the Applicant’s motion for temporary access. The Court’s focus must be on what is in Luna’s best interest while considering the criteria enumerated in para. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
There are a number of legal principles that I have considered in this matter:
a. A non-parent does not have a presumptive right to access or to maintain an ongoing relationship with a child. The onus is on a non-parent seeking access to prove that it is in a child’s best interest to have such a relationship. A court 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: see Farber v. Robitaille, 2004 CarswellOnt 5674 (Sup. Ct.).
b. Courts are reluctant to allow a relationship to develop between a child and a legal stranger that might put undue stress on a custodial parent; anything that interferes with a custodial parent’s day-to-day life may adversely affect his or her ability to meet a child’s needs: see Gibson v. Emmons, 2015 ONSC 4458 (CanLII) at para. 24.
c. “It may be convenient to lump decided cases into categories such as “grandparent cases” or “step-parent cases” or “same sex couple cases”, but the reality is that there are no hard and fast categories in the law pertaining to custody and access. A grandparent who has stepped into a full time primary parenting role presents a different type of case than a long distance grandparent with limited actual connection to the child. A parent in a same sex couple may or may not be a psychological parent depending on the actual circumstances of the child’s birth, the commencement and duration of the couple’s relationship, and myriad other factors.
In my view, the statutory direction to determine the child’s best interests should be accomplished by a careful consideration of the facts in each case rather than by focusing on the status of each adult in relation to the child.” (Johnstone v. Locke, 2012 ONSC 719 (CanLII) at paras. 103-104).
d. “In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.” (Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 141 O.A.C. 389 at para. 21.)”