Parents generally have the legal authority and responsibility to care for their children as their guardian.
However, there are situations where a non-parent may apply to the court for a parenting order respecting the decision-making responsibility of the child. Parents do not stand the risk of losing custody of their children just because a non-parent can establish that it would be in the best interest of those children that the non-parent have custody. In all cases in a contest for decision-making (custody) between a parent and a non- parent the sole question is what is in the best interest of the child.
This article will discuss a recent example of Tristan Thompson's successful legal guardianship application in the context of Ontario family law, specifically with a discussion on the best interests of the child.
Tristan Thompson Example
In a recent California based case, NBA Cleveland Cavaliers player, Tristan Thompson has been awarded by the Court as the sole legal guardian of his 17-year-old brother, Amari.
After the death of their mother, Thompson filed for full guardianship claiming that their father has been absent and uninvolved from Amari's life since 2014.
According to court documents obtained by pop culture blog posts, the Court found that it was not in Amari's best interest to be returned to his parent's previous country of nationality and that "reunification" between Amari and his father is not viable due to neglect and abandonment under California law.
Amari has several medical conditions including epilepsy that require 24/7 support that Thompson as Amari's closest living family member claims to have the means to support him.
While Tristan Thompson's California case may have little influence here in Ontario, it can be looked at as a case study wherein a Court granted a parenting order to a non-parent in respect of decision-making responsibility by looking to the best interests of the child. The best interests of a child is a concept which is the cornerstone of every Ontario family law case involving children.
Ontario Family Law
Section 21(2) of the Children's Law Reform Act states that:
Any person other than the parent of a child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child.
In support of a parenting order in this context, the person applying for the order must set out the proposed plan for the child's care and upbringing, information respecting the person's current or previous involvement in any family proceedings as well as any other information that is relevant to the factors to be considered by the Court under section 24 in determining the best interests of child.
Factors related to the best interests of a child include,
- The child's needs, given the child's age and stage of development;
- The nature and strength of the child's relationship with each parent;
- Each parent's willingness to support the development and maintenance of the child's relationship with the other parent;
- The history of care of the child;
- The child's views and preferences, giving due weight to the child's age and maturity;
- The child's cultural, linguistic, religious and spiritual upbringing and heritage;
- Any plans for the child's care;
- The ability and willingness of each person in respect of whom the order would apply for and meet the needs of the child;
- The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate;
- Any family violence; and
- Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
An Ontario Court must consider all factors listed above related to the best interests of a child and must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The caselaw dealing with the involvement of persons other than a child's parents in their care and upbringing involves an assessment of the nature of that relationship from the perspective of the child. The leading case in Ontario dealing with non-parent relationships with children is Chapman v. Chapman (2001), 2001 D.L.R. (4th) 443, 2001 CanLII 24015 (ON CA), 15 R.F.L. (5th) 46 (Ont. C.A.).
Most often the tension is between extended family members (such as grandparents, step-parents or other extended family members) who have (or had) a history of involvement with the child and parental autonomy of parents to make decisions on their child's behalf.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.