What happens when a party wants to deny their ex-spouse, a stepparent, access to their child? In a recent case, an Ontario Court considered a mother’s request to prevent her ex-spouse, Mr. L, from seeing her daughter.

Mother Brings Child into Relationship

The parties began to live together around December 2017 and separated in the spring of 2019.

The mother brought a daughter, H, into the relationship. H was about one year old when the parties began living together. H’s biological father is out of the picture.

The parties also had one child together, J, born in May 2018.

Since the separation, H and J lived primarily in the care of the mother.

In June 2020, Mr. L went to the mother’s home. While he was there, the mother left to walk to a nearby store. When the mother left, Mr. L let himself into her locked home, without her permission. Since that time, the mother has not allowed Mr. L to have access with the children.

The mother brought a motion for Custody of H and J, and an order that Mr. L’s access with J be supervised. The mother also sought to prevent access between Mr. L and H altogether.

Parental Autonomy and the Best Interests of the Child

According to s. 20(1) of the Children’s Law Reform Act (CLRA), biological parents are presumptively and equally entitled to custody. That said, when a child lives with one parent with the consent of the other parent, the non-residential parent’s entitlement to custody – but not access – is suspended until a separation agreement or court order is made.

In the case of stepparents, section 21(1) of the CLRA provides that a parent or any other person may apply for an order respecting custody of or access to a child. Furthermore, the Court of Appeal has stated that while parental autonomy should be favoured, it is important to recognize that such autonomy is not unassailable. That is, courts will still make access orders where it is clear that a parent is not acting in the best interests of their children.

In general, whenever the parenting arrangements of a child are in issue, the primary legal principle is that the best interests of the child govern. Those factors include:

• the love, affection and emotional ties between the child and,
  • each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
  • other members of the child’s family who reside with the child, and
  • 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;
• the plan proposed by each person applying for custody of or access to the child 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; and
• any familial relationship between the child and each person who is a party to the application.

Court Respects Mother’s Parental Autonomy

In granting the mother’s motion regarding access to H, the court found that Mr. L had not provided evidence that demonstrated that he had a settled intention to treat H as his child. The court also found that the mother had a reasonable justification to cut Mr. L out of H’s life. Mr. L viewed H and J differently, and did not initially pursue custody of, or access to, H.

In addition, the court noted that the parties’ cohabitation was not particularly long. It was debatable how close a relationship Mr. L and H had formed in that short period of time.

Furthermore, Mr. L was an admitted marijuana user, and the court found that it was reasonable for the mother to have concerns about a caregiver who may be high.

As a result, the court found that there were not sufficiently cogent reasons to interfere with the mother’s parental autonomy.

Connect With Us

If you have questions about your rights regarding custody and access after a separation or divorce, it is best to speak with a lawyer. At Gelman & Associates, we understand that this is an uncertain and stressful time. We remain open to help our clients but are taking precautions to keep safety paramount. Our goal is to always empower clients to make informed decisions about their future.

In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online if you have a family law matter you need help with.

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