Family units come in all shapes and sizes, and in Canada approximately one in ten children are living in a stepfamily.[1] A step-parent is a difficult job. As the name implies, it requires that you step up and become not just a supportive partner, but a caregiver, mentor, and potentially even the primary care provider. Just because you aren’t related by blood does not mean that you don’t help with the homework, attend school events, provide financial support, and offer love and guidance. But what happens if the relationship between you and your partner deteriorates? Can you, as a step parent, fight for decision-making responsibility (DMR) or primary residency of your step-child (formerly known as custody)? Understanding stepparent rights in Ontario can be crucial in these situations.
In Ontario, there is no automatic paternal rights given to step-parents, but that doesn’t mean you have no options. Depending on the context of the case, you could argue for some parental rights, even where the biological parents oppose. In this article I will explain the legal principles begin step-parents’ “rights” in Ontario and explore some key case law.[2]
Determining Factors in Step-Parent Cases
The legal basis behind a step-parents rights and obligations in Ontario is a combination of the Divorce Act and the Children’s Law Reform Act (CLRA). As per 21(2) and (3) of the CLRA, any person may apply to a court for a parenting order or contact order. The primary factor that a court uses when determining parenting issues is the best interest of the child(ren). When assessing a child’s best interests, courts examine all the contextual factors of the case.
One of the primary factors courts consider is whether the step-parent had a “settled intention” to parent the child. Courts examine various elements, including the length of the relationship, the step-parent’s role in the child’s life, the presence of biological siblings, the level of conflict between the parties, and any unilateral actions by the biological parent to sever the relationship. A child’s wishes may also be considered, depending on their age and maturity. The best interests of the child analysis essentially boils down to weighing whether the ongoing relationship with the step-parent would be beneficial or harmful to the child. Even biological ties are secondary to the best interest, as was highlighted in Eldon v. Grant:
“The merits of an application in respect of custody or access are determined on the basis of the best interests of the child. There is no presumption that the biological parent will be awarded custody in preference to a step-parent.”[3]
What is Settled Intention When a Step-Parent is Involved?
Unlike with biological parents, where there is an obligation to provide for the child, it is crucial to a parenting application that step-parents demonstrate a clear and settled intention to parent the child. When considering this point, courts look to factors such as the length of the relationship and the level of involvement the step-parent has had in daily parenting responsibilities.
In Hicks v. Geist,[4] a step-father applied to resume contact with his five-year-old step-daughter, from whom he had been separated for nine months. The step-father had acted as a parent to Jackie since she was 18 months old, being primarily responsible for daycare, medical appointments, and daily routines. The mother argued that resuming contact was unnecessary, as the child was thriving without it. However, the court emphasized that severing the well-established relationship unilaterally created risk for the child, especially considering her age. The court ordered contact to resume, underscoring the importance of preserving meaningful step-parent relationships where there is a consistent history of care.
Similarly, in Agmon v. James,[5] a stepmother sought temporary access to her nine-year-old stepson. Both biological parents opposed the application, arguing she was not significantly involved in the child’s life. However, the court found substantial evidence to support the stepmother’s claim, including witness testimony and text messages demonstrating the child’s attachment. The court ruled in her favor, stating that while the decisions of the biological parents are important, they do not have absolute autonomy to exclude a step-parent who has formed a settled intention to parent the child.
Context of Relationship Between the Step-parent and Child
Courts also assess the quality of the relationship between the step-parent and child when determining whether access is appropriate. In Gibson v. Emmons,[6] a stepmother’s application for interim access was dismissed despite a three-year relationship with the child. the court gave much weight to the opinion of the biological parents, who were apposed to the access, as they had already developed a cooperative co-parenting relationship. Additionally, there was evidence that the step-mother’s parenting was suspect, with instances of spanking and harsh words. The longstanding relationship was wight against the parent’s objection and the possibility of undermining the current parenting arrangements. As such, her application was dismissed.
Death of Biological Parent
In MR v. KM, 2023 ONSC 1729, a step-father applied for custody after the mother’s death. He had been in a common-law relationship with the mother, had one biological child with her, and had been a step-parent to the child in question. The child had primarily resided with the mother and step-father. However, after the mother’s passing, the biological father unilaterally changed the child’s primary residence.
The step-father sought primary care of the child, with the biological father having mid-week overnight access. The biological father proposed that the child primarily reside with him, with the step-father having alternate weekend parenting time.
The court carefully analysed the best interests of the child, considering the child’s specific needs and the nature of their relationships. The court ultimately concluded that a week about schedule, splitting parenting time between the two, would be in the child’s best interest. The court reasoned that this schedule would allow the parties and the child to adapt to the significant loss which they experienced, while also providing stability.
Blended Families and Biological Siblings
Step-parents may have a stronger claim to ongoing contact with step-children when they also have a biological child with the other parent. In Ball v. McKenzie,[7] the step-father sought overnight parenting time with his stepchild alongside his biological child. The mother argued against overnight access for the step-child. The court, recognizing the step-father’s settled intention to parent both children equally, ruled that it was in the child’s best interest to maintain a parallel parenting schedule with her biological sibling. The decision highlighted the courts reluctance to disrupt sibling bonds.
However, in Laye v. Brisebois,[8] a step-father’s application for parenting time with his stepchild was denied, despite the parties also having a biological child together. The court found that the relationship had been relatively short, the parties living together for just over a year, and there was insufficient evidence to demonstrate a settled intention to parent. The mother had also raised concerns about the step-father’s criminal history, which the father did not disclose properly to the court. The court upheld the mother’s parental autonomy and dismissed the application.
Parental Autonomy
While courts prioritize the best interests of the child, parental autonomy remains a significant consideration. In ND v. JM, KKM,[9] a stepmother sought contact with her two stepchildren. Both biological parents opposed the application, citing a history of conflict and a relatively short relationship. The court found that granting leave for the stepmother’s application was not in the children’s best interests due to the potential for further disruption to the child’s life as a result of the conflict between the step parent and the biological parents.
Step-Parent Obligations
If you have stood in the role of a parent, you may be responsible for child support, even when you were only in a common law relationship with the child’s parent. Generally, the closer the relationship resembles the parent/child dynamic, the more likely you will be obligated.
Even where one or both of the biological parents are paying child support, it is still possible for the step-parent to be obligated to pay some additional support. support in such cases are usually supplemental, and not based on the full guidelines amount.
Conclusion
The role of step-parents in family law continues to evolve, reflecting the changing dynamics of modern families. While biological parents maintain a significant degree of autonomy, courts are increasingly recognizing the importance of maintaining meaningful relationships between step-parents and children. Each case is unique, and the outcome depends on various factors, with the child’s best interests always at the forefront of judicial decisions. To ensure you are fully aware of your rights and obligations, contact an experienced family lawyer today!
[1] https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016006/98-200-x2016006-eng.cfm
[2] Much of the case law for this article was sourced from “All (Most) in the Family: Recent Developments in Parenting Cases involving Non-Parents”, prepared for the 49th National Family Law Program by Justice Christine Doucet, Jessica MacDonald, and Angela Walker.
[3]Eldon v. Grant, 2021 ONSC 3799 (CanLII), at para 36.
[4] Hicks v. Geist, 2022 ONSC 5671 (CanLII).
[5] Agmon v. James, 2018 ONCJ 4 (CanLII).
[6] Gibson v. Emmons, 2015 ONSC 4458 (CanLII).
[7] Ball v. McKenzie, 2021 ONSC 1150 (CanLII).
[8] Laye v. Brisebois, 2020 ONSC 4439 (CanLII).
[9] ND v. JM, KKM, 2023 NSSC 227 (CanLII).
Written by Caidan Ubell