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Seeking Child Custody and Access: A Non-Parents Guide

In exceptional circumstances, a parent may be unable to provide the requisite care for their child, and a non-parent may be given custody. Simply put, the authorized parent is not able to provide a contract to “transfer” said custody or access, but rather, the non-parent must make an application and apply to the court for an Order of custody or access.

Find out whether you qualify as a non-parent and what steps you are to take in order to apply as a Non-Parent for custody and access. 

Defining the terms: Custody and Access

It is worth establishing the terms of custody and access in order to ensure there is a firm understanding of the law and whether or not an individual is able to apply to the court for an Order for custody and/or access.

While not defined in statute, custody is the right and responsibility of a parent to make decisions for a child. Access refers to the time in which the non-custodial parent has the right to exercise time with the child in their care. Access is an important element inclusive of the child or children’s given information in relation to the health, education and welfare of that child (pursuant to s20(5) Children’s Law Reform Act (CLRA)). 

Who is a Parent?

A parent is one of the following: (as defined in the Children’s Law Reform Act)

  • a biological parent of a child;
  • The birth parent of a child is, and shall be recognized in law to be, a parent of the child;
  • The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child. For a list of presumptions in relation to a child conceived through sexual intercourse see section 7(2) of the CLRA
  • an adoptive parent of a child (section 217 or 218 of the Child, Youth and Family Services Act, 2017);
  • an individual declared under Part II of the Children’s Law Reform Act to be a parent of a child; and
  • an individual presumed under section 8 of the Children’s Law Reform Act to be the father of a child. 

Who May Apply

A non-parent is any individual who does not fall within one of the categories above. Any other person, including a grandparent or relative by way of example, can apply to the court for an Order.

The Paramount Consideration

The paramount consideration is the child’s best interests. As a testament to these considerations, the courts shall give regard to the following needs and circumstances:

  1. the love, affection and emotional connection between the child and the Applicant, those residing with the child, and persons involved in the child’s upbringing;
  2. the child’s views;
  3. the length of time the child has lived in a stable home;
  4. the ability of the Applicant to provide the child with guidance, education, the necessaries of life and any other special needs;
  5. the Applicant’s plan of care;
  6. the permanence and stability of the unit of the proposed residence;
  7. the Applicant’s ability to act as a parent; and
  8. any familial relationship between the child and any party to the application. 

The court has the discretion to appoint a person who has professional skill, in order to assess and report to the court on the needs of the child and arguably, sub-points (d) and (g).

Note: for these purposes, Applicant includes any person who is the party making the application.

Steps to Apply

A party may initiate an Application for a court order respecting custody and access by completing and filing a Form 8: Application.

This Application must be accompanied with a Form 35.1: Affidavit in Support of Claim for Custody or Access. This Affidavit will contain information regarding the Applicant’s proposed plan of care of the child, information regarding the person’s current or previous involvement with any other family law proceedings and/or any additional information relevant for the court’s consideration.

Next, a Non-Parent must complete and file a police record check. This can be done by way of preparing a Consent Form for Police Record Check for Non-Parent Custody Applicants.

In addition, a Non-Parent must complete a Children’s Aid Society Report on Records form for a report as to whether a society has records relating to the Applicant and if there are records relating to the Applicant, the details regarding those records.

Get your Advice

Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law. That said, if you are a non-parent seeking custody or access and are unsure as to how to get started on your Application, or whether you qualify, contact Nussbaum Law today.

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