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Parental Autonomy v. Situation Where a Relative Wants the Child to be Part of His / Her Family:


The stepmother wanted access to a child, such access opposed by the father and by the mother. The mother and father submit that they should have parental autonomy to determine if the child sees the stepmother.


Justice Sherr in his inimitable style analyzed the law. He differentiated between people who have a settled intention and do not have a settled intention –

It would be in the child’s best interests to have temporary access with the stepmother even if this more stringent test was applicable in this case since:

a) The stepmother had a very important pre-existing relationship with the child;

b) The decision of the parents to deny her access imperils that relationship; and

c) The parents are acting arbitrarily and unreasonably.


The court found that case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family. Their status is different than family or community members who have not formed the requisite settled intention.


The Court found that the higher status is reflected in subsection 62 (3) of the Children’s Law Reform Act. This subsection requires that a person who has formed a settled intention to treat the child as a child of his or her own family shall be named as a party in any custody or access case involving the child. This is not a right afforded to a family or community member who has not formed the requisite settled intention.


A person who has formed a settled intention to treat the child as a child of his or her own family not only has additional rights regarding the child – they have additional obligations. Pursuant to subsection 1 (1) of the Family Law Act they are included in an expanded definition of parent and have child support obligations. This is an obligation that is not imposed on family or community members who have not formed this settled intention.


Here, the stepmother assumed a role as a third parent to the child. While the wishes of the mother and father are given some consideration, they do not have the parental autonomy to exclude the stepmother from the child’s life.


The court found that it is in the child’s best interests to have meaningful temporary access with the stepmother because:

a) The child loves the stepmother and the stepmother loves the child.

b) The child views the stepmother as a parent and the stepmother treats the child as her own child.

c) The child has an important relationship with the stepmother that needs to be preserved and fostered.

d) Access with the stepmother will ensure that the child can have important relationships with his sister, friends and extended family members.

e) The court is satisfied that the stepmother will act responsibly in parenting the child.


The court set out a specific access schedule to accomplish the objectives of the child having meaningful access with the stepmother, not disrupting his stability and protecting him from adult conflict. On a temporary basis, access will take place with the stepmother on one weekend every four weeks. This will not interfere with the mother’s parenting time.

The court will not make a temporary summer access order at this time as requested by the stepmother as it intends to review the access issue before then.


Analysis:

If you are a non-parent and want access to the child/children, Shankar Law can help you. We have got your back covered. We will analyze the situation, do the appropriate case law research, and will represent you in Court. At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your family life. We work all over Ontario, but primarily in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.

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