“Under s. 21(1) of the CLRA “A parent of a child or any other person” can apply for access to a child. Mr. McKenzie as a stepparent to Onyx qualifies as “any other person”.
In this case, the issue involves the doctrine of “parental autonomy”. The leading case in Ontario in this regard is Chapman v. Chapman, 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (C.A.) which was an appeal from a final order after trial granting access to a grandmother and her 8 and 10 year old grandchildren. Abella J.A. noted that there was a finding by the trial judge that the relationship between the grandmother and children was not positive, and that the purpose of the trial judge’s order was to “create” a positive relationship. She noted that this is the job of the parents and not the court, and if the parents’ decision was not arbitrary, it was not for the court to interfere with that decision unless it was in the best interests of the children to do so.
The ratio of this decision has been summed up in several cases (see Young v. Young, 2019 ONCJ 747 at para. 23 and Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.)) as an inquiry as to the following questions:
a. Is there a positive relationship between the Respondent and the child?
b. If there is a positive relationship, has the parents’ decision imperiled that relationship?
c. Has the parent acted arbitrarily?
In the present case, the Respondent is now enjoying overnight access to his natural child, Bronx. There is no question that the decision to differentiate Onyx’s access from Bronx’s was a decision made by the Applicant. The real issue is whether there is a positive relationship between Mr. McKenzie and Onyx, and whether the mother’s position was arbitrary in nature or with a view to preserving the best interests of the child.
It is to be noted as well that there is authority that the parental autonomy argument may fail where the access seeker has had a “settled intention” to treat the child as his or her own. In Agmon v. James, [2018] O.J. No. 59 (C.J.), Sherr J. gave access to a stepmother over the parents’ objections. At para. 58, he stated that “the court finds that the [parental autonomy] line of case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family. Their status is different than family or community members who have not formed the requisite settled intention.” This decision was cited with approval (although not followed) by Boswell J. in Laye v. Brisebois, 2020 ONSC 4439.
In making his determination regarding parental autonomy, Sherr J. relied upon s. 62(3)(b) of the CLRA which requires any person demonstrating a settled intention to treat the child as a member of his or her own family to be named as a party to custody proceedings. Parties who can demonstrate settled intention enjoy a status beyond that of a person having a relationship with the child which does not meet the “settled intention” test such as a relative or grandparent.
Finally, it is to be noted that, in examining the provisions concerning best interests of a child as set out in s. 24(2) of the CLRA, only one of those criteria is related to the blood relationship between the party and the child.”