Can A Stepparent Keep Access To A Child Following A Separation?

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The idea of what makes for a “normal” family has changed drastically over the years. Just generations ago, anything outside of a husband, wife, and children was considered unconventional. Thankfully we’ve come to expand our understanding in this area and there are many types of relationships that can make up a family. One such non-traditional relationship is that of a stepparent, where a biological parent remarries or enters into a relationship with someone who is not their child’s biological parent. These relationships can be incredibly strong, but what happens when a parent and stepparent separate or divorce? Can a stepparent have access to the child (or children)? This was a question recently considered by the Ontario Court of Justice. 

The relationship

The mother and father had one child together, while the father also had an adult daughter from another relationship. They have since separated but did not have a formal separation agreement. However they had been able to co-parent without one, with the child spending weekdays with the mother and weekends with the father. 

The father and stepmother began living together in March 2009. They were married in October, 2011, but separated in November 2016. Since the separation the daughter continued to live with the stepmother, who had no other children. However, the stepmother had only seen the child on four occasions since she separated from the father, who along with the mother had denied her any contact. As a result, the stepmother brought an application for access to the child. 

What the law says

The Children’s Law Reform Act allows a parent or a child or any other person, to apply for an order respecting custody of or access to a child. Meanwhile, the Act also establishes the merits of a custody order, stating the issue must be determined on the basis of the best interests of the child. The factors involved here 

  • The love, affection and emotional ties between the child and,
  • (i) each person 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.
  • 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
  • Any plans proposed 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
  • The relationship by blood or through an adoption order between the child and each person who is a party to the application.

The court’s analysis

After reviewing the above factors, the court determined that the stepmother and child had a strong, loving relationship. The child has expressed missing the stepmother, who had contributed to a loving, stable home for over seven years. This all led to the court finding that denying the child a relationship with the stepmother would not be in the child’s best interests. 

To speak with an experienced Windsor lawyer about child custody or support, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.

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