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Family - Child Access. B.F. v. A.N.
In B.F. v. A.N. (Ont CA, 2023) the Court of Appeal considered a test for grandparenting access:[1] Following a 20-day trial, the trial judge made orders under s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3, (2nd Supp.) that a five-year-old child reside with her father at all times, and that the father have sole decision-making responsibility over all decisions relating to the child.
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[3] The live issues at trial related to contact between the maternal grandparents and the child. Both maternal grandparents brought applications under the Children's Law Reform Act, R.S.O. 1990, c. C. 12, (the “CLRA”) in which they sought decision-making responsibility for, and primary residence of, the child. However, both abandoned those claims prior to trial. Accordingly, the only issues at trial were whether the maternal grandparents should have contact with the child and access to her medical records and whether any orders restraining their contact with the child should be made.
[4] The trial judge ordered that the maternal grandfather, B.O.F., be permitted to have some supervised contact with the child. However, under s. 16.5 of the Divorce Act, the trial judge ordered that the maternal grandmother, I.F., have no direct or indirect contact with the child, with her father, or with any member of the father’s family. In addition, the trial judge ordered that neither maternal grandparent have access to any medical reports, information, or records in relation to the child and that neither maternal grandparent contact any of the medical or health professionals working with the child.
[5] Further, under s. 35 of the CLRA, the trial judge made an order permanently restraining the maternal grandmother from any direct or indirect contact or communication with the child's father, the child, or any centres where the child receives treatment.
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[14] In her reasons, the trial judge reviewed the background facts and the applicable legal principles concerning awarding a grandparent access[2] to a child.
[15] The trial judge began her analysis with a consideration of the three-part test set out in Giansante v. DiChiara, 2005 CanLII 26446 (Ont. S.C.)[3], to first determine whether she should defer to the child’s father’s position that no contact should be permitted:. Does a positive grandparent-grandchild relationship already exist?
. Has the parent’s decision imperilled the positive relationship?
. Has the parent acted arbitrarily? Court Note 3: The trial judge recognized that the Giansante test had subsequently been modified such that the initial three steps effectively became part 1 of a two-part test: Torabi v. Patterson, 2016 ONCJ 210, at para. 61; Capone v. Pirri, 2018 ONSC 6541, at para. 12; Botelho v. De Medeiros, 2017 ONCJ 463, at paras. 21-29.
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