Today’s modern family is not just a product of biology.
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Today’s modern family takes its shape in many ways. And a whole new set of family law questions emerge when single parents form new relationships, because step-parents and stepchildren are born. What happens if the parents in the blended family separate? Does a step-parent have a right to spend time with their stepchild even though the parents’ relationship has ended?
That question was recently before Justice Margaret Eberhard of Ontario’s Superior Court of Justice. In the case, a single mother of a one-year-old daughter met her new partner in July 2018 and the couple began living together one month later. The new partner did not have any children of his own. Three years later, the relationship ended. Shortly thereafter, the stepfather requested parenting time with his stepdaughter, which the mother refused. In early October, the parties made their way to the courtroom to resolve the dispute.
During the relationship, the stepfather said he and the daughter shared a close bond, despite the relative brevity of the parties’ relationship. Since the daughter never had a relationship with her biological father, the new partner quickly became a father figure. According to the stepfather, he was involved in all aspects of the daughter’s care and the daughter almost always called him “Daddy.”
The mother’s view of the stepfather’s relationship with the daughter was almost completely at odds with the stepfather’s account. According to the mother, she was always primarily responsible for the care of the daughter and made all important decisions for her, such as choice of daycare and medical treatment. The mother said the daughter called the stepfather by his first name and only “occasionally called him Dad.”
The judge accepted the stepfather’s evidence and rejected the mother’s, describing the evidence as “beyond challenge” that the mother and stepfather “both participated fully in parenting the child.” The judge found there had been “no distinction drawn by reason of the (stepfather) not being the biological father” and that the mother “proclaimed and encouraged (the stepfather’s) excellence in being a parent.”
From there, the judge went on to apply the law. To start, the judge framed the question she was being asked: What is the mother’s autonomy to raise her child as she sees fit, without the stepfather’s involvement?
In support of her argument that the stepfather should not have any parenting time, the mother pointed to a long line of court decisions dealing with a grandparent’s right to spend time with a grandchild. The judge made clear the case before her was different. The difference is rooted in Ontario’s Children’s Law Reform Act, which gives special status to a person who has “formed a settled intention to treat the child as a child of his or her own family.” For the judge, there was no doubt the stepfather had that special status.
The stepfather’s special status was not determinative, however. The child’s best interests always have priority. According to the judge, a determination of best interests may include factors such as “length of the relationship, the age and developmental stage of the child during the relationship and when contact ceased, the length of time since contact ceased, and the extent of the step-parent’s participation in usual parenting imperatives.”
In the result, the stepfather was granted parenting time with his stepdaughter.
One of the challenges the judge faced in making the order for parenting time was that nine months had gone by after the parties’ separation. Since the daughter had little, if any, contact with her stepfather during that time, there was concern the daughter could experience distress from the sudden reintroduction of the stepfather. The judge acknowledged that nine months was a significant gap for a young child.
“There is likely an inherent loss of the child’s perception of the (stepfather) and her relationship with him due to that passage of time which could be said to raise a risk in resumption,” the judge said. However, in this case, the real risk was the one “taken by the (mother) when she abruptly and unilaterally terminated an ongoing, committed, step-parent/child relationship.”
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In addition to his request for parenting time with his stepdaughter, the stepfather requested an “order that he be permitted to pay” child support. Since he will have parenting time with his stepdaughter, the stepfather now pays child support to the mother.
While secondary to the main issue in the case, the mother’s position created a risk that she would have to pay the stepfather’s legal costs in the event he was granted parenting time. Given his success, the stepfather sought costs from the mother in the amount of $26,570.27. The mother resisted on the basis that an order for costs would negatively impact her ability to care for the child. The judge disagreed and ordered the mother to pay costs of $20,000 to the stepfather.
In the end, today’s modern family is not just a product of biology. Rather, it is constituted in many different ways. Regardless of the process of its formation, a child’s best interests remain paramount when parents, or stepparents, separate.
Adam Black is a partner in the family law group at Torkin Manes LLP in Toronto. email@example.com
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