Divorce and separation can be especially tough on stepparents who have deep bonds with their stepchildren. When the court system gets involved, it can be difficult to understand the legal options one may have to keep one’s children in their lives. This article will provide a general overview of decision-making responsibility, parenting time, child support, and psychological parenting rights a court may consider in their judgement.
Decision-making responsibility and Parenting-Time
As of March 2021, custody in Canada is now called decision-making responsibility and access is called parenting time.
These are governed by the Divorce Act federally for married couples. For common-law couples, these are governed by the Children’s Law Reform Act in Ontario. Both Acts allow stepparents to have parenting time, and decision-making rights. The Court’s priority is always the Best Interest of the Child. The Court will weigh evidence about whether preserving the relationship with the stepparent will benefit the child psychologically or emotionally.
The evidence induced in these cases can include school records (demonstrating whether a stepparent has attended parent-teacher conferences), family photos, text and email conversation, financial records showing the stepparents contribution to the child’s life. If the case goes to trial, testimony from family, friends, and the child’s teacher may be relevant.
Child Support
If a stepparent had previously stood in Loco Parentis, meaning the stepparent stood in the place of a parent and assumed parental responsibilities and rights for a child without formal adoption, they may owe child support. The leading Supreme Court of Canada case on this, Chartier v. Chartier, 1 SCR 242, confirms that a person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent. The court will look at the specific facts of each case and see if it meets the standard of “settled intention.” Living with the child is not enough. Instead, the Court looks at genuine parental roles, including permanence and intention, and whether the stepparent represents to the child, the family, and the world that they are responsible as a parent to the child.
It is crucial to note that support obligations are linked with parenting time. It is incredibly difficult to have decision-making responsibility and parenting-time over a child whom one does not financially support.
Conclusion
Once a stepparent can prove that the child is, in fact, a child of the marriage, they are able to have equal rights and obligations to them as they would to a biological child. They now have the right to decision-making responsibility and parenting time and can apply for both. Every family law case will be judged on its on facts and merits, creating a strong need for emotional, financial, and photographic evidence. Consider speaking with a family law lawyer to help build your case and guide you through the process.
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- 30+ years family law litigation experience providing courtroom-informed reality testing
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Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
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