Parenting Time & Decision Making

Stepdad Gets Parenting Time with Kid After Split, Against Mom’s Wishes

Written by Russell Alexander / (905) 655-6335

Modern relationships have given rise to the modern family – in all its unique forms.   But when it comes to protecting the bests interests of a child, courts are commendably broad-minded.   In a recent Ontario court decision, the issue was the extent to which a stepfather should have parenting rights over a child – over the objections of the child’s own mother.

The man – who had no children of his own – met the single mother of a 1-year-old girl in 2018, and they moved in together a month later.  During their three-year relationship, the man demonstrated a settled intent to be the girl’s stepfather and treat her as his own.  This started when the girl was 18 months old.   And the evidence showed he was indeed a father figure to her:  She almost always called him “Daddy” – and they had a close bond.  The girl had no relationship with her biological father. 

When the stepfather split with the mother, he applied for gradual expansion of his parenting time with the girl.  She was now 5 years old. 

The mother was vehemently opposed to any continued relationship; in fact for the past 9 months she had blocked the stepfather from having any contact with the girl whatsoever.  She reasoned that he was not her biological father, and there was no benefit to allowing him back into the child’s life.   Moreover, the mother claimed that any forced resumption of contact between her and the stepfather would have a negative effect on her own mental health and ability to parent effectively.  (She had always been the primary caregiver, and made all the important decisions for her daughter). 

On hearing from both sides, the court granted the stepfather’s request, after expressly accepting his evidence over that of the mother.   

First, the court acknowledged the time that had lapsed since the stepfather had seen the girl.  Although this was unfortunate, it was not insurmountable:

I recognize of course that 9 months is a significant hiatus 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. However, I find that the risk was one taken by the Respondent Mother when she abruptly and unilaterally terminated an ongoing, committed, step-parent/child relationship.

Next, the court turned to the law: The governing statute was the provincial Children’s Law Reform Act, which gives special status to the stepfather as someone who has “formed a settled intention to treat the child as a child of his or her own family.”   The stepfather had satisfied this initial test.   

Both parents participated fully in parenting the girl, the court found.  There was no distinction drawn merely because the stepfather was not the girl’s biological parent.  Indeed, he had been actively involved in the girl’s life:  caring for her, driving her to daycare and medical appointments, and other aspects of normal life. 

The court also assessed the girl’s best interests in the circumstances.  The factors included her age and development stage, the length of her relationship with stepfather, and his participating in the usual parenting tasks.    It noted that the early years in a child’s development (i.e. before the age of 5) was the “sweet spot for forming attachments”, so the girl would benefit from the stepfather’s authentic continued involvement in her life.  To block him out entirely, as the mother had tried to do, would deprive the girl of “one of the two principal relationships of her young life”.

The court was quick to add, however, that after a split not all stepparents are entitled to access as-of-right: 

It must be emphasized that not all step parents, or more generally persons living in conjugal relationship with a child’s parent, are the same. It takes no imagination to think of cohabitants who are involved only a short time, or uninvolved in the parenting beyond the curtesy of a shared household, or distant or cruel to the child, or toxic to the child’s relationship with the biological parent or even vindictive enough to insist on contact with the child only to spite the parent.

Finally, the court acknowledged that to grant the stepfather access might drum up potential conflict between him and the mother – and the girl might be exposed to this.  However, this kind conflict is commonplace in all families, whether between biological parents or others in a parental role.   The court said:

We know it is harmful but one parent cannot merely say I will be in conflict with the other so there should be no contact. A child should not be thus deprived of the love of a committed step-parent who has, prior to separation and unilateral restriction on contact, been authentically involved in the parenting of the child.

The court ultimately ordered that the stepfather’s contact with the child could resume, but asked the two respective lawyers on the case to “assist in crafting the best circumstances for helping the child through the renewal of contact.”  This would entail each of them making submissions on the practicalities around maximizing the benefits of the resumed relationship, while minimizing harm to the girl.  

Full text of the two interrelated decisions in this case:

Hicks v. Geist, 2022 ONSC 5671 (CanLII)

Hicks v. Geist, 2022 ONSC 5690 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.