Custody and Access: Stepparent Applications

Can a stepparent apply for access after a separation?

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We have previously written about grandparent access and the impact of recent amendments to the Children's Law Reform Act (CLRA). Recently, an Ontario case explored the issue of step-parent access. Unlike grandparents, step-parents are not specifically named in the CLRA.  However, they do have status in custody and access applications. In this post, Olivia Giacobbi, a Fresh Legal intern from the University of Ottawa law school, reviews the case of Agmon v. James and stepparent access generally.

The Best Interests of the Child

As previously discussed, when making decisions about custody and access, judges consider the best interests of the child. The CLRA sets out a number of factors in section 24 of the Act.  This case explored:

The love, affection, and emotional ties between the child and each person entitled or claiming access to the child. All parties were found to have a good relationship with the child. The stepmother presented evidence that was detailed and consistent, including family and neighbourhood witnesses to show she had a loving relationship with the child.

The plans proposed for the child’s upbringing. The birth parents planned to exclude the stepmother from the child’s life. The judge found this was not in the best interest of the child because living with the stepmother gave the child access to valuable friends and extended family. The court, however, was cautious of placing the child with the stepmother since the birth parents and stepmother were in a high conflict scenario.  

The ability of each person to act as a parent. In this case, the judge found the birth parents were acting in bad faith and were failing to put the child’s interests before their own. Parents must put the interests of their child ahead of an awkward or inconvenient relationship.

The relationship by blood or adoption between the child and each person who is a party.  The judge considered that this was the only clause in the best interests analysis set out in the CLRA that considered biological vs. non-biological parents. The judge made it clear that this is one factor in a long list of factors, and does not seem to have placed weight on it in this case.

What if the parents don't want the stepparent to see the child?

The birth parents argued that they should have the right to decide whether the child saw the stepmother.  In grandparent access cases, some courts have favoured the “parental autonomy” approach, which state that considerable weight should be given to the wishes of the custodial parents when determining access.

However, in Agmon v James, the judge found the birth parents could not exclude the stepmother from the child's life.  The CLRA states a person who has demonstrated an intention to treat a child as a child of their own family has additional rights and obligation towards the child. They are included in an expanded definition of “parent” for the purposes of child support, and they are to be named as parties in any case involving custody or access.  Since the stepmother had acted as a parent, she had a different status than a family or community member applying for access.

Overall, the judge in Agmon v James decided that access with the stepmother would be in the child’s best interests for a number of reasons, including their important pre-existing relationship, love for each other, and the fact that they viewed each other as parent and child. The judge found that the decision of the parents to deny access jeopardized the relationship and the parents were acting arbitrarily and unreasonably, and ordered regular access for the stepmother.