Stepparents and the Parental Authority of Biological Parents in Custody Cases

August 27, 2020

Mark Feigenbaum

A recent Ontario court decision addressed, what, if any, rights of custody and access a stepparent has in regard to a stepchild following separation with the biological parent.

Mother Denies Father Access to Child and Stepchild

The mother and father have a two-year old son; the parents separated in 2019. The mother also has a three-year old daughter who is not the father’s biological child. The parents only lived together for one year with the two children. Both children continued to reside primarily in the care of the mother since the date of separation, though the father continued to see the children on a daily basis at first.

However, in December, 2019, the mother would no longer allow the father to remove the children from her home, though he continued to visit them at her home.   

Then, on June 3, 2020, when the father was visiting at the mother’s residence and spending time with his son in the backyard, the mother  left to walk to a nearby store.  While she was gone, the father let himself into her locked residence, without her permission, by managing to unlock her door through a broken window. Since that time, the mother had not permitted him to have access with the children.

On June 22, 2020, the father filed a motion, without notice to the mother, seeking leave for an urgent motion, or case conference, to address the parenting arrangements for the children. 

The mother said that the father had been abusive towards her throughout the latter part of their relationship and had been abusive towards the children. She claimed he was moody and a regular marijuana user.

The father denied that he has been abusive in any way to anyone. He admitted to using marijuana, but medicinally, and never to impairment. In turn, the father claimed that the mother was abusing drugs, specifically crack cocaine, which the mother denied. The father also claimed the mother was bipolar; he said that her illness, in combination with her drug use, made her mentally unstable and unfit to care for the children.

Each parents sought custody of the children. They both wanted to limit the other’s access to supervised visits only. In the mother’s case, she sought to prevent access between the father and his stepdaughter altogether.

At issue before the court was: first, whether the court should defer to the mother’s parental autonomy and respect her decision to deny the father any access to his stepdaughter and; second, and more broadly, what parenting arrangement was in the best interests of the children. 

Court Rules that Father Cannot Have Access to Stepdaughter 

The court began by explaining that biological parents are, pursuant to s. 20(1) of the Children’s Law Reform Act (the “CLRA”), presumptively and equally entitled to custody. However, where, following a separation, the child(ren) live with one parent with the consent or acquiescence of the other parent, the non-residential parent’s entitlement to custody, but not access, is suspended until a separation agreement or court order provides otherwise.  

Thus, the court stated that the father was presumptively entitled to access with his son and had standing to pursue a custody order with respect to him. 

However, the court noted that the father’s position with respect to his stepdaughter was different, because he was not her parent within the meaning of the CLRA and he therefore had no presumptive entitlement to custody or access. The court explained, however, the father did have standing to pursue a custody or access order in relation to his stepdaughter by virtue of s. 21(1) of the CLRA, which provides: 

A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. 

Finally, whenever the parenting arrangements of a child are in issue, the controlling legal principle is the best interests of the child.

With regard to the father’s stepdaughter, the court stated:

“[The mother’s] parental autonomy is generally entitled to respect. There are limited circumstances in which the court will intervene and override that autonomy. One circumstance where parental autonomy may not be favoured is where the non-parent has demonstrated a settled intention to treat the child in issue as his or her own.

In this case, [the father] has not provided sufficient evidence to establish that he has or has had a settled intention to treat [his stepdaughter] as his child.

 A second circumstance where the court may intervene despite the principle of parental autonomy is where the non-parent has an established and positive relationship with the child in issue and where the parent has imperiled that relationship in an arbitrary way.” 

The court found that the father did not have a close relationship with his stepdaughter and, on balance that there were no sufficiently cogent reasons to interfere with the mother’s parental autonomy; the mother had made it quite clear that she did not want the father to be involved in his stepdaughter’s life. 

As a result, the father’s claim to custody of or access to his stepdaughter was denied.

With regard to the son, the court concluded that it was in his best interests to award temporary custody to the mother, subject to an ongoing, regular schedule of access visits with the father.

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.


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