Do Step-Parents Have Parenting Rights in Ontario?

If you helped raise a child and your relationship with the child's parent has ended, you may be wondering whether you have any legal standing. Step-parents are not automatically parents in law, but the law does give them some ways to ask a court for help.

Which route applies depends on whether you were married to the child's parent and whether a divorce is involved. This article walks through the options in plain language.

Who counts as a parent in law

A step-parent is generally not a parent just by living with and caring for a child. The Children's Law Reform Act sets out who is a parent, starting with the birth parent. A person who is not a parent, such as a grandparent or stepparent, applies under different provisions.

Any person with an interest may also apply to court for a declaration that a person is, or is not, a parent of the child, though this does not apply to adopted children. Whether that fits your situation is a question for a lawyer.

Applying under the Children's Law Reform Act

The Children's Law Reform Act applies to unmarried or common-law parents and to married parents who are not divorcing. Under it, a person who is not a parent may apply for a parenting order on decision-making responsibility or for a contact order.

There are extra requirements for non-parents. Someone seeking decision-making responsibility must also file a recent police records check and ask for a search of child-protection records. Ontario's guidance says the police record check must be served on the other parties and filed with the court within 10 days of receiving it, and an existing check can be used if it was completed within 60 days before the application started. The Children's Aid Society returns its records report to the court within 30 days.

Every application must include an affidavit with your proposed plan for the child's care and upbringing and details of any earlier family or criminal proceedings. Ontario's guidance says non-parents file Form 35.1 Parts A and B, and Form 35.1A is needed only if a party or the children have been involved in child protection matters.

Applying under the Divorce Act

The federal Divorce Act governs parenting between married spouses. A court may make a parenting order on application by either or both spouses, or by a non-spouse who is a parent, stands in the place of a parent, or intends to stand in the place of a parent.

A non-spouse applicant, such as a stepparent who is not the married spouse, needs leave of the court before applying for a parenting order. For a stepchild, a child of the marriage includes any child for whom both spouses stand in the place of parents. If you were married to the child's parent and stood in the place of a parent, you may be in a different position than someone who was not married to them.

A person other than a spouse may apply for a contact order, and leave of the court is required. In deciding whether to make one, the court considers whether contact could happen anyway, for example during another person's parenting time.

What the court focuses on

The court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. The best-interests factors include the child's relationships, the history of care, and the child's views and preferences. The court gives the child's views due weight according to age and maturity, unless they cannot be ascertained.

For a step-parent, evidence of the role you actually played, such as day-to-day care, school involvement and the bond with the child, speaks to those factors. The factor list is not exhaustive.

If decision-making is sought, it covers significant decisions about health, education, culture, language, religion and spirituality, and significant extra-curricular activities. Decision-making responsibility may be allocated to either spouse, to both, or to a non-spouse. Whether a court would do that in your case depends on the facts.

What to do next

• Work out whether you were married to the child's parent and whether a divorce is under way, since that decides which statute applies
• Gather records of your role: school contacts, medical appointments, photos, messages and care routines
• Consider whether an agreement with the child's parent is possible, as a separation agreement may cover decision-making and parenting time
• Speak with a family lawyer before applying, because leave of the court may be required
• Avoid pulling the child into the dispute

Parties must protect the child from conflict arising from the case as far as they are able and, where appropriate, try to resolve matters through a family dispute resolution process.

Frequently asked questions