Do Step-Parents Have Access Rights to Step-Children Following Separation from the Biological Parent?

Mark Feigenbaum

What happens to the step-parent and step-child relationship following separation from the biological parent? A recent Ontario case explored this question.

What Happened?

The mother and father had one child together, a 9-year-old boy. They co-parented the son without a court order or a formal separation agreement. The son spent weekdays with the mother and weekends with the father. The father also had a 20-year-old daughter from another relationship

In 2009, the father and the stepmother began living together. They married in October, 2011 and separated in November, 2016. The stepmother had no biological children.

The daughter continued to live with the stepmother after the stepmother and father separated.

However, the stepmother had only seen the son four times following her separation from the father. The son continued to spend each weekend with the father.

In July 2017,the stepmother issued an application seeking an order of temporary access to the son on alternate weekends from Friday evenings until Sunday evenings, together with 3 weeks of summer access. 

The biological mother and father denied the stepmother any contact with the son following her application; they both opposed the stepmother having any access with the son. 

Issues

The case raised issues 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 and the autonomy of parents to make access decisions for their child with respect to such a person.

The Law

The court explained that s. 21of the Children’s Law Reform Act (the “Act”) permits a parent of a child or any other person, including a grandparent, to apply for an order respecting custody of or access to the child or the incidents of custody to the child.

Additionally, s. 24(1) of the Act sets out that the merits of a custody or access application must be determined on the basis of the best interests of the child. Subsection 24(2) of the Act sets out criteria to assist the court in determining the child’s best interests, which states:

The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) 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;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Decision

After reviewing the oral and affidavit evidence provided by the mother, father and stepmother, the court concluded that it was in the son’s best interests to have meaningful temporary access with the stepmother because:

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

As a result, thecourt set out a specific access schedule to accomplish the objectives of the son having meaningful access with the stepmother, not disrupting his stability and protecting him from adult conflict. On a temporary basis, access was set to take place with the stepmother on one weekend every four weeks, which would not interfere with the mother’s parenting time.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.