In the recent decision in Agmon v. James the divorced parents of a 9-year-old child were able to form a united front on at least one matter: – that the child’s new step-mother should not have access to him.
Since their split when the child was an infant, the parents had always co-parented without a court order or separation agreement and had a fixed rotation schedule for the child spending time with each of them. The father re-married early, to a woman who became the child’s stepmother. That relationship lasted 7 years; the stepmother had no other children of her own.
After the stepmother’s split from the father, both parents closed ranks against her, by refusing to allow her access. Indeed, since that separation in 2016, she had been allowed to see the child only four times. That access ceased entirely when she filed her court application asking for a temporary access order, to allow her to see the child on alternating weekends plus some part of the summer.
At the subsequent hearing, the court tackled this uncommon scenario, noting that it required the balancing of two competing rights and interests: the autonomy of the parents to make access decisions, versus the access rights of a person who has formed a settled intention to treat a child as if they were part of his or her own family.
The court noted that Ontario law allows the parent of a child “or any other person” to apply for an access order. The best interests of the child are the key governing consideration in the court’s evaluation of the application and involves the court considering numerous factors.
These included the love, affection and emotional ties between the child and the stepmother, and between the other family members. On this point the court preferred the stepmother’s evidence, finding that she played an important role in the child’s life, and showed a settled intention to treat him like a member of her own family. This was also true in the past when she helped provide a stable home life for much of his childhood when they all lived together with the father.
In light of the stepmother’s very important pre-existing relationship with the child – and while the wishes of the custodial parents were admittedly to be given great weight in determining who gets access – in this case, it was in the child’s best interests to allow the stepmother the temporary access she wanted. She had clearly assumed a role as a third parent to him.
Although the relationship between all the adults was marked with mutual mistrust, the parents had acted unreasonably and arbitrarily here, and it behooved them to put the child’s interests ahead of their own, the court said. Their wishes were to be given some consideration, but their parental autonomy did not go so far as to exclude the stepmother from the child’s life in these circumstances. The court summed up its conclusions this way:
- The child loves the stepmother and the stepmother loves the child.
- The child views the stepmother as a parent and the stepmother treats the child as her own child.
- The child has an important relationship with the stepmother that needs to be preserved and fostered.
- Access with the stepmother will ensure that the child can have important relationships with his sister, friends and extended family members.
- The court is satisfied that the stepmother will act responsibly in parenting the child.
The court granted an order allowing the stepmother’s temporary access for one weekend every four weeks. It noted that the mother and father were expected to promote that access, admonishing that the “child has the right to enjoy relationships that are important to him.”
For the full text of the decision, see:
