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In today’s world, families are becoming more diverse than ever before. What happens when a stepparent wants access to a child? In a recent case, an Ontario court considered this interesting question when it heard a stepmother’s request for access to a nine-year-old boy.

The Parties’ Story

The mother and father had one child together.

The stepmother and father began living together in March 2009, married in October 2011 and separated in November 2016.

The stepmother had only seen the child four times since she separated from the father.

The stepmother brought an application for access to the child.

The court began by outlining that s. 21 of the Children’s Law Reform Act (the Act) permits a parent of a child, or any other person, to apply for custody of or access to a child. Section 24(1) of the Act provides that a custody or access application will be determined on the basis of the best interests of the child. In considering the best interest of the child, the court must consider:

  • the love, affection and emotional ties between the child and,
    • each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
    • other members of the child’s family who reside with the child, and
    • persons involved in the child’s care and upbringing;
  • the child’s views and preferences, if they can reasonably be 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;
  • the plan proposed by each person applying for custody of or access to the child 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; and
  • any familial relationship between the child and each person who is a party to the application.

The Court’s Decision

In granting the stepmother’s application, the court found that the stepmother viewed the child as her own and loved him very much. She had been involved in the child’s life since he was one year old and treated him as a member of her family. Unfortunately, the stepmother’s relationship with the child had been compromised by the restriction in access.

There was also an exchange of text messages between the mother and stepmother, which showed that the child missed the stepmother.

The court went on to find that the stepmother had been an important part of providing the child with a stable home environment from May 2009 to November 2016. In addition, the court was satisfied that the stepmother was capable of meeting the child’s needs and would act responsibly in parenting the child.

The court concluded that not letting the stepmother have access to the child would deprive the child of an important relationship. The court faulted the mother and father for restricting the stepmother’s access, stating that:

An important part of responsible parenting is putting your child’s interests ahead of your own. This includes facilitating a child’s important relationships, even when your own relationship with these persons have broken down and this becomes awkward or inconvenient. The mother and father have been failing the child in this area.

The court also found that in light of the fact that the stepmother had assumed a role as a third parent to the child, the mother and father did not have the parental authority to exclude the stepmother from the child’s life. Furthermore, the court noted that even if the more stringent “parental autonomy” test was applicable in this case, it would still be in the child’s best interests to have access with the stepmother because:

  • the stepmother had a very important pre-existing relationship with the child;
  • the decision of the parents to deny the stepmother access imperiled that relationship; and
  • the parents were acting arbitrarily and unreasonably.

In the end, the court concluded that it was in the child’s best interests to have meaningful access with the stepmother.

Lessons Learned

If you are a stepparent and formed a settled intention to treat a child as a child of your own, you may be entitled to access. If you have questions about your custody or access rights, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we 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 1-844-769-0737, or contact us online to schedule an initial consultation.

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