When issues of child custody or access come up, it is in relation to a child’s biological parents. But separation and divorce can impact other non-traditional families, such as blended families where stepparents are involved. In a recent decision from the Ontario Superior Court of Justice, the court looked at an issue revolving around a stepfather’s wish to have custody and access to his former partner’s biological child.
A family with mixed parents
The court noted that neither the mother nor the father had proven to be reliable witnesses, and as a result, the court made limited findings of fact. The mother and father began to live together sometime around December 2017. The mother had a daughter from a previous relationship (“H”) who was one-year-old when she and the father began living together (H has no relationship with her biological father). A second child (“J”) was born about five months after the parents began living together.
The parties did not agree on when they separated, but the court put it as having occurred sometime in the Spring of 2019. The children have resided primarily with the mother since the separation, though the father claimed he was the primary caregiver while they were together, and for a considerable amount of time after their separation. Neither parents have a job but receive ODSP benefits, with the father collecting $1,600 per month and the mother about $3,000 per month between ODSP and Child Tax Benefits.
Child access becomes an issue
The father said that in December 2019 the mother would no longer allow him to take the children from her home during the day. He said he had been taking them from 9:00am-6:00pm daily until that point. As a result, the father said he started to spend time with the children in the mother’s back yard instead of taking them away. However, on June 3, 2020, the father let himself into the mother’s apartment through a broken window while she was away from the house. Since that time, the mother has not allowed him to have access to the children.
The mother told the court the father is abusive towards her and the children, and that he is moody and has been violent towards others. The father denies all of these allegations. Each parent accused the other of abusing drugs.
The principle of parental autonomy
Both parents were looking to be awarded custody of the children while limited the other’s access to supervised visits only. The mother wants the father to have no contact at all with H.
The court noted that the Children’s Law Reform Act states biological parents are presumptively and equally entitled to custody. However, when a couple separates and one parent has primary custody, the other is not entitled to custody until a separation agreement or other court order states otherwise (but they are entitled to access).
The court stated that in the case of J, the father was presumptively entitled to access, but not necessarily to custody. The CLRA states that the court should consider a number of factors when assessing a child’s best interest, including:
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.
The court was critical of the behaviour and inconsistent testimony of both parents but ultimately determined that the father could have some access to J, but not to H, who is not his biological child, and who he did not seek custody of when making his original application. The court stated, “I have a very hard time accepting that a person would inadvertently fail to name one of the children he is seeking custody of. In my view, (the father) brought an application for custody of (J). On further reflection, he decided to add (H) to the application. I think he views (H) and (J) differently.”
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