An Ontario court recently outlined the factors that must be considered when determining whether a party who is not a biological parent will be granted access to a child.

What happened?

The respondent parents had one child, who was nine years old. The parents, who were no longer together, had always co-parented the child without a court order or formal separation agreement (the child spent weekdays with the mother and weekends with the father).

In March 2009, the father started living with his then-partner, who became the child’s stepmother. The father and stepmother married in October 2011 and, ultimately, separated in November 2016.

The stepmother had only seen the child four times since the separation.

In July 2017, the stepmother brought an application for temporary access to the child on alternate weekends from Friday evenings until Sunday evenings, together with three weeks of summer access.

The parents both opposed the stepmother’s application.

The legislative framework

Section 21 of the Children’s Law Reform Act (the Act) allows a parent or any other person to apply for an order for custody of, or access to, a child. The courts must determine the merits of a custody or access application on the basis of the best interests of the child, the criteria of which is set out in s.24(2) of the Act.

The court’s decision

The first factor the court considered was the love, affection and emotional ties between the child and the child’s various family members. In this case, the court found that the parents both had excellent relationships with the child. The court also noted, however, that the stepmother viewed the child as her own, loved him very much, and had been intimately involved in all aspects of his life since he was one year old. Overall, the court found that the stepmother had established a strong prima facie case that she had formed a settled intention to treat the child as a child of her own family.

The court then considered the child’s views and preferences, which were obtained from the Office of the Children’s Lawyer. The court concluded that the exchange of text messages between the mother and stepmother revealed that the child missed the stepmother.

Next, the court noted that the stepmother was an important part of providing the child with a stable home environment between May 2009 until November 2016, and that all of the parties were capable of providing the child with guidance, education and the necessaries of life.

The court then considered that the parents’ plan was for the child to have no access to the stepmother, which it concluded was not in the child’s best interests. It found, however, that the stepmother’s plan for alternate weekend access was also too much at the time, and therefore not in the child’s best interests either (as the child was used to spending every weekend with the father).

Finally, the court found that all of the family units were stable and that the stepmother had been acting appropriately. It noted that a blood relationship is only one of the factors the court must consider when determining what is in a child’s best interests, and confirmed that:

A person who has formed a settled intention to treat the child as a child of his or her own family not only has additional rights regarding the child – they have additional obligations.

In this case, the stepmother assumed a role as a third parent to the child. As a result, while the wishes of the parents had to be given some consideration, they did not have the parental authority to exclude the stepmother from the child’s life.

In the end, the court granted the stepmother’s application and concluded that it was in the child’s best interests to have meaningful, temporary access with her because:

• The child loved the stepmother and the stepmother loved the child.
• The child viewed the stepmother as a parent and the stepmother treated the child as her own child.
• The child had an important relationship with the stepmother that needed to be preserved and fostered.
• Access with the stepmother would ensure that the child could have important relationships with his family and friends.
• It was clear that the stepmother would act responsibly in parenting the child.

Lessons learned

As the court noted, this case raises questions about the access rights of a person who has formed a settled intention to treat a child as a child of his or her own family, as well as the autonomy of biological parents to make access decisions for their child.

If you are going through a separation or divorce and have questions about custody or access, contact Gelman & Associates. Our knowledgeable, results-oriented lawyers seek to empower clients to make informed decisions following the breakdown of a relationship. In addition to our firm’s handbook on separation and divorce and numerous web-based resources, all prospective clients receive a comprehensive family law kit during their initial consultation, with detailed information and resources to help individuals understand and navigate the separation and divorce process.

Conveniently located in six offices throughout Ontario, our offices are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200, or contact us online for an initial consultation.