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Factual Background

The primary issue in this case was whether a court should defer to a party’s parental autonomy and respect their decision to deny a step-parent access with the child. In this case, the oldest child was the biological child of the Respondent Mother and the step-child of the Applicant Father. The youngest child was the biological child of both parties. The Applicant Father filed a motion, without notice, which made it apparent that sought relief in the form of temporary custody over both children. The parties began to reside together in December 2017 and separated sometime in the spring of 2019. The parties agreed that the Applicant was permitted to have regular and consistent access visits with the children until June of 2020 at which point the Respondent began to deny access. The Respondent mother wishes to prevent any access between the Applicant and the eldest child on the grounds that he was not her biological father. The Respondent’s position is that as the biological mother of the oldest child, she should be the sole decision-maker in terms of whether the Applicant should spend any time with the child.

Legal Analysis

The court began by referring to section 20(1) of the Children’s Law Reform Act which states that biological parents are presumptively and equally entitled to custody. However, if after a separation the child(ren) live with one parent with the consent or acquiescence of the other, the non-residential parent’s entitlement to custody, but not access, is suspended until the parties enter in an agreement or a court order provides otherwise. The court acknowledged that this was the relevant consideration for the Applicant’s right to custody with respect to the youngest child.

However, the court acknowledged that the Applicant was not the parent of the older child to which he was seeking custody. While he did not have a presumptive entitlement to custody or access with respect to the older child, the court found that he did have standing under section 21(1) of the CLRA which states that “a parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.” The court referenced the case of Chapman in Chapman in which the Ontario Court of Appeal held that while parental autonomy should be favoured, courts have the ability to step in and make access orders where it is clear that the parent(s) are not acting in the best interests of the child. The court also considered the recent authority which states that parental autonomy should not be favoured where the party seeking access to the children has demonstrated a clear intention to treat the child as a member of their family. The court found that the Applicant did not provide sufficient evidence to establish that he had a settled intention to treat the older child as his own.

Having not met this standard, the court also found that there was another circumstance where the court may intervene, namely when the non-parent has an established and positive relationship with the child and where the parent has imperiled that relationship in an arbitrary way. While the court found that the Respondent had arbitrarily cut the Applicant out of the older child’s life, there were some reasonably justifications for the Respondent’s position. The court considered the length of time the parties resided together, the failure of the Applicant to originally name the older child in his pursuit of custody and the Respondent’s claims that the Applicant did not have a close relationship with the older child, that he did not treat her as a daughter and that he was harsher on her than he was with the parties’ youngest child.

The court was not persuaded that there were any valid reasons, on the evidence presented, to interfere with the Respondent’s parental autonomy, and her right to make decisions in relation to her child without government interference. The court chose to respect the Respondent’s position to not allow the Applicant to be involved in the life of the older child.

With respect to the younger child, the court found that while the Applicant was entitled to access to the child, his equal right to custody had been suspended because he acquiesced to the younger child living on a full time basis with the Respondent after the parties’ separation. The court refused to make an order for custody in the Applicant’s favour at that time. Instead, the court found that it would be in the best interest’s of the youngest child to award temporary custody to the Respondent, subject to an ongoing, regular schedule of access visits with the Applicant.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.