What Access Rights Does a Step-Parent Retain After Separation Where Both Biological Parents Refuse Contact with the Child?


The court recently considered the application of the stepmother of a 9-year-old boy who sought temporary access to the child on alternate weekends as well as three weeks of summer access. Both of the child’s biological parents opposed the stepmother having any access to the child. The case addressed a number of interesting issues including access rights of a non-biological parent who formed a settled intention to treat a child as their own as well as the autonomy of parents to make decisions about their child where such a third party had a presence in the family unit.

Some Family History

The boy’s biological parents have always co-parented the boy (their only child together) without a formal separation agreement or court order. The father also had a 20 year-old daughter from a previous relationship (the boy’s half sister). Under their arrangement, the boy spent weekdays with the mother and weekends with the father.

After living with the stepmother for two years, the father and step-mother got married in 2011 but eventually separated in 2016. The boy’s half sister lived with the stepmother following the separation. The step-mother had no other children.

While the boy’s half sister lived with the step-mother, the step-mother had only seen the boy four times since the separation. The child continued to live with his mother during the week and with his father during weekends.

The step-mother filed her access application in July 2017. After her filing, the boy’s parents refused to let her see the boy.

The Law

Section 21 of Children’s Law Reform Act (CLRA) permits a parent, grandparent, or “any other person” to apply for custody of or access to a child.

The merits of a custody application are to be determined based on the best interests of the child, and the CLRA sets out the factors that are to be considered when determining best interests.

The Best Interests of the Child

The court considered these factors in turn, keeping in mind the specific circumstances of this family.

Love, Affection and Emotional Ties

The court noted, among other things, that:

  • Both the mother and father had excellent relationships with the boy;
  • Both the mother and father had minimized the stepmother’s relationship with the boy arguing that she worked long hours and had often not been present while he was with his father on the weekends;
  • The step-mother clearly viewed the boy as her own and loves him very much. She was intimately involved in all aspects of his life since he was 1 years old;
  • The step-mother’s description of her relationship with the boy was supported by a number of witnesses including the step-mother’s sister, the father’s sister, and the boy’s cousin;
  • Before the step-mother had filed her access application, the mother had seemingly appreciated the importance of the boy maintaining a connection with the step-mother, texting her several times that the boy missed her, and similar messages;
  • The step-mother was willing to pay child support (which the mother was seeking, despite the mother’s simultaneous insistence that the step-mother and boy did not have a close relationship);
  • The boy had a close relationship with his half-sister, who was living with the step-mother;
  • The step-mother’s relationship with the boy was compromised by the parent’s actions;

The boy’s views and preferences

Text messages between the mother and step-mother revealed that the boy missed his step-mother, half sister, and friends.

Length of time the boy lived in a stable environment

The biological parents had provided the boy with a stable co-parenting arrangement since he was born in 2008. The step-mother played a key role in providing him with a stable home environment from May 2009 (when he was one) until November 2016 (the separation).

Ability and willingness of each person to provide the boy with guidance/education, necessaries of life, and special needs

All three parties are capable of meeting all of the boy’s needs.

Plans for the boy’s care and upbringing

The court noted that the mother and father’s plan for the boy to have no access to the step-mother, would not be in the boy’s best interests as it would deprive him of an important relationship in his life and would also impact other relationships, including that with his half sister.

However, the court also noted that the step-mother’s request for alternate weekend access was “too much at this time” and was also not in the boy’s best interests. The court noted that the boy was accustomed to spending each weekend with his father and had not seen the step-mother in fourteen months. It was therefore likely that he would need some time to adjust to a new parenting schedule.

The court also noted that, as much as possible, the boy should be insulated from a high conflict situation.

Permanence and stability of the family unit

The court noted that all of the family units which were proposed for the child to live in were stable.

Ability of each person seeking custody/access to act as parent

The mother and father claimed that the mother should not have access for several reasons, including improper supervision of the boy on a number of occasions during which he had subsequently allegedly engaged in inappropriate play with a friend and at a different time, gotten hurt. The biological parent’s claimed that they did not trust the step-mother.

The step-mother was able to refute their allegations, however, raised her own concerns that the father had not been acting in good faith, including allegedly demanding sexual favours in exchange for access to the boy, and telling her that it was “his mission” to “make her unhappy”. The court found that the father’s behaviour undermined his credibility.

The court also emphasized 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.

Relationship by blood or adoption order between the boy and each person applying for custody/access

The court noted that, based on caselaw about step parents, the step-mother’s status as a non-parent under the CLRA was only one factor in the overall best interests of the child analysis.

The Decision

The court ultimately issued an order allowing the step-mother temporary access to the boy for one weekend every four weeks, noting that:

  • The boy loves the step-mother and she loves him in return;
  • The boy views the step-mother as a parent, and she treats him as her own child;
  • The boy has an important relationship with the step-mother that must be preserved and fostered;
  • Access with the step-mother will ensure that the boy’s other important relationships (including with his half sister) are preserved;
  • The step-mother will act responsibly in parenting the child.

Separation and divorce can present many fears and concerns regarding child custody and access for the individuals ending their relationship as well as other loved ones in a child’s life. If you are a non-biological parent, grandparent, or other individual and you have questions about custody and access rights, contact Jason P. Howie. Jason has seen all of the possible permutations when it comes to separation and divorce.  Jason is Certified as a Specialist in Family Law by the Law Society of Upper Canada and his experience and success practicing family law has earned him respect and distinction in the legal communities of Windsor and Essex County.  Jason has seen enough to know that each case must be treated differently, and that no single solution will work in every situation or negotiation.  Jason will customize an approach to meet your specific needs. To discuss your situation with a Windsor separation lawyer, call 519.973.1500 or contact us online.

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