Court Rules on Step-Parent’s Right to Access Child

Mark Feigenbaum

The Ontario Court of Justice recently examined a stepmother’s application for temporary access to her ex-husband’s child. The biological parents of the 9-year-old child were unanimous that the stepmother should not have access to the child. However, the Ontario Court of Justice thought differently.

What Happened?

After the biological parents of the 9-year-old child separated, they were able to successfully co-parent without a formal court order or separation agreement. There had also been a fixed rotation schedule for the child: the child would spend weekdays with the mother and the weekends with the father.

The father eventually re-married a woman who became the child’s stepmother. The relationship of the father and the stepmother lasted 7 years, from March 2009 to November 2016. The stepmother had no children of her own.

Following the separation of the father and the stepmother, the biological parents of the child refused to grant access to the stepmother. After the separation, the stepmother claimed to have only seen the child 4 times. She applied for a temporary access order, requesting to see the child on alternating weekends and some parts of the summer.

The Positions of the Parties

The mother and father minimized the stepmother’s relationship with the child. They claimed that she worked long hours and  hadn’t often present when she lived with the father. They also argued that the child did not miss the stepmother. The mother and father additionally claimed that they should have parental autonomy to determine whether the child could see the stepmother.

The stepmother claimed the opposite. She told the Court that she viewed the child as her own and loved the child very much. She was able to provide detailed evidence about the role she had played in the child’s life, which was supported by collateral witnesses.

The Best Interests of the Child

Section 21 of the Children’s Law Reform Act enables a parent of a child or any other person, including a grandparent, to apply for an order requesting custody of or access to the child.

The section also indicates that the merits of a custody or access application shall be determined on the basis of the best interests of the child. It also establishes criteria to assist the court in determining what constitutes the child’s best interests.

There are eight (8) main factors:

• The love, affection and emotional ties between the child;
• The child’s views and preferences, if they can be reasonably ascertained;
• The length of time the child has lived in a stable home environment;
• The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life, and any special needs of the child;
• Any plans proposed for the child’s care and upbringing;
• The permanence and stability of the family unit with which it is proposed that the child will live;
• The ability of each person applying for custody of or access to the child to act as a parent;
• The relationship by blood or through an adoption order between the child and each person who is a party to the application.

There are also several cases that deal with parental autonomy. This issue most commonly arises when grandparents seek an access order and a child’s parents oppose the grandparents’ access. In those circumstances, the court recognizes that considerable weight should be given to the wishes of the custodial parents. These decisions also consider a few aspects: whether there lies a positive pre-existing relationship between the child and the person requesting access, whether that relationship will be jeopardized by the custodial parent’s decision, and whether the custodial parent is acting arbitrarily.

The Decision

The Court determined that the case law relating to parental autonomy was not applicable to the stepmother in this situation, as she had formed a settled intention to treat the child as a child of her own family. This status is different than family or community members who have not established the requisite settled intention.

The Court also found that a person who has a settled intention to treat a child as their own child not only holds additional rights, but also additional obligations – including child support. In this case, the stepmother acknowledged these obligations and demonstrated a willingness to pay child support.

Upon examining the nature of the stepmother’s relationship with the child, the Court concluded that the stepmother had assumed a role as a third parent to the child. Although the mother and father’s wishes were considered, parental autonomy does not exclude the stepmother from the child’s life.  The Court held that it was in the best interests of the child to have meaningful temporary access with the stepmother.

The Court granted the stepmother temporary access to the child on one weekend every four weeks and will review a temporary summer access order at a further time, as requested by the stepmother.

If you are considering applying for a child access or support order, it is it is critical to obtain legal advice from a knowledgeable family lawyer with significant experience. Mark Feigenbaum brings years of litigation, corporate law, tax law, estate law, and accounting experience to family law disputes. Mark can help you protect your children and your assets, including your business if you are a professional or business owner and guide you through the process of starting your new life.  Mark’s goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible.