Custody and access issues can often arise when parents go through a separation or divorce. Importantly, custody disputes are not exclusive to biological parents alone. The Ontario Court of Justice recently issued a decision on what rights a child’s stepmother had to access to the child after separating from his father.

What Happened?

The stepmother and father had been together for seven years before they separated. At the time of the separation, the father’s son was nine-years-old. Throughout their relationship the father and stepmother had custody of the son on weekends, and he would live with his mother on weekends. The mother and father also have a daughter, who was 20-years-old at the time of the separation but who lived exclusively with the stepmother and father. She continued to live with the stepmother following the separation. After the separation, , the stepmother sought to continue to have access to the son, a request the father and mother denied. In the six months between the separation and the decision being issued, the mother had only been able to see the child four times. In making its decision, the court had to “determine 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 and the autonomy of parents to make access decisions for their child with respect to such a person.”

The Best Interests of the Child

In determining whether the stepmother was entitled to access the court first turned to Section 21 of the Children’s Law Reform Act (the Act), which permits any person to apply for an order of custody or access to a child. The court was guided by Subsection 24(1) of the Act sets out that “the merits of a custody or access application shall be determined on the basis of the best interest of the child.” The criteria to assist in determining the best interests of the child are found in Subsection 24(2). The court considered a number of these factors.

Love, Affection, Emotional Ties

 The first factor considered was the love, affection, and emotional ties between the son and each of his parents and stepmother. The son’s mother and father both had excellent relationships with him. At trial, they claimed the stepmother did not have a close relationship with the son, stating she worked late on weekends and that the child did not miss her. However, the stepmother’s testimony proved to be more persuasive to the judge. She provided clear and detailed evidence about the important role she played in the son’s life. She said she loved the son as her own and had played an important role in his life since he was just a year old. Her testimony was supported by a number of witnesses, including her sister, a friend, the father’s sister, and the child’s cousin. There were also text messages from the mother to the stepmother stating that the child missed her and looked forward to seeing her. The court also pointed out that the mother was denying the close relationship between the child and stepmother but also seeking child support from her. The judge noted that in order to have a support obligation the stepmother would have needed to have formed a settled intention to treat the child as her own family. The court determined the mother had established a strong prima facie case that she formed a settled intention to treat the child as one of her own family and that she had a close, loving, and important relationship with the child. This relationship was compromised by the mother and father’s refusal to grant access. The judge was also troubled by the father’s behavior, including attempts to delay the trial and his insistence on having sex with stepmother in order for her to have access.

The Child’s Views and Preferences

The second factor was the son’s views and preferences. The court determined that he wanted to to have visits with his stepmother.

Length of Time in Stable Home Environment

The third factor considered was the length of time the son has lived in a stable home environment. The court held that the stepmother was an important part of the stable co-parenting arrangement established by the parents prior to the separation.

Ability and Willingness to Provide the Child with His Needs

The fourth factor considered was the ability and willingness of each person applying for custody to provide the son with guidance and education, the necessaries of life, and any special needs he may have. . The court found that all parties were capable of satisfying the conditions of this factor.

Proposed Care and Upbringing

The fifth factor considered were the plans proposed for the child’s care and upbringing. It was the parents’ plan to deny access to the stepmother, which the court determined was not in the child’s best interests. However, the court also stated that access every other weekend would be too much, and was sensitive about the high conflict situation that the child would be placed in. The court stated that some middle ground of access would have to be established.

Permanence and Stability of the Proposed Family Unit

The sixth factor considered was the permanence and stability of the family unit with which it is proposed the child will live. The court noted that all family units involved in the case were stable.

Ability to Act as Parent

The court found that the stepmother satisfied the seventh factor, which seeks to ensure the ability of each person applying for custody of or access to the child to act as a parent.

The Familial Relationship

The final factor considered was the relationship by blood or through an adoption order between the child and each person who is party to the application. While the stepmother is not a biological parent of the child, that is just one consideration. The court determined the other factors outweigh that in terms of the best interest in the child. The court ultimately held that the stepmother had taken on the role of a third parent to the child. It was in the child’s best interests to have meaningful, though temporary, access with his stepmother. Issues of custody and access can be difficult to navigate during a separation or divorce. Custody decisions impact more than just where a child will live. They can determine who makes decisions for the child as well as the obligations of each parent. Contact NULaw by phone at 416-481-5604 or reach us online to arrange a consultation today.

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