Can a Stepparent Get Decision-Making or Parenting Time in Ontario?

You may have helped raise a child for years, then separated from the child's parent. Now you may be wondering whether the law gives you any role at all. A stepparent is not automatically a parent in law, so the answer depends on your situation and on which statute applies.

This guide explains the main routes in Ontario, what a non-parent has to file, how the court decides and why an agreement is not the final word. It is general information, and a lawyer can tell you how it fits your facts.

Which law applies to you

The federal Divorce Act governs parenting between married spouses. For a stepparent, it matters that a child of the marriage includes a child for whom both spouses stand in the place of parents.

If you were never married to the child's parent, Ontario's Children's Law Reform Act (CLRA) applies instead. The two statutes have parallel but separately numbered sections, and the CLRA also applies to married parents who are not divorcing.

Older orders and agreements may still use the words custody and access. These have been replaced by decision-making responsibility and parenting time.

If you were married to the parent: the Divorce Act

Under the Divorce Act, 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 the court's leave, or permission, before applying for a parenting order.

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

Decision-making responsibility covers significant decisions about health, education, culture, language, religion and spirituality, and significant extra-curricular activities. It can be given to either spouse, to both, or to a non-spouse.

If you were not married: the Children's Law Reform Act

A parent may apply for a parenting order covering decision-making responsibility and parenting time. A person who is not a parent, such as a stepparent, may apply for a parenting order on decision-making responsibility or for a contact order.

What a non-parent must file is more than what a parent files. The list is below.

• An affidavit with your proposed plan for the child's care and upbringing and details of any earlier family or criminal proceedings.
• A recent police records check, if you are seeking decision-making responsibility.
• A request for a search of child-protection records, also for decision-making responsibility.

The court also has a duty to check whether restraining orders, child protection matters or criminal matters involving a party are pending or in effect.

Forms and timelines for non-parents

Ontario's guidance says parents applying file Form 8 and Form 35.1 (Part A), while non-parents file Form 35.1 Parts A and B. Form 35.1A is needed only if a party or the children have been involved in child protection matters.

Because the forms and steps are detailed, mistakes can slow a case. A lawyer can confirm which forms fit your case.

How the court decides, and what agreements can and cannot do

In parenting cases the court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. The court then looks at a list of best-interests factors, including the child's needs, relationships, history of care, views and care plans. The list is not exhaustive.

The court must, where possible, take the child's views and preferences into account to the extent the child can express them. The court also does not consider a person's past conduct unless it is relevant to parenting time, decision-making responsibility or contact.

If you and the child's parent agree on something, put it in writing. A domestic contract such as a separation agreement is unenforceable unless it is in writing, signed and witnessed. Even then, a court may disregard a provision on decision-making responsibility or parenting time if that is in the child's best interests. An agreed plan never binds the court on these issues.

What to do next

• Confirm whether you were married to the child's parent, since that decides which statute applies.
• Gather records of your role in the child's life, such as school, medical and daily-care involvement.
• Draft a realistic plan for the child's care and upbringing.
• If you are a non-parent seeking decision-making responsibility under the CLRA, request a police records check early and note the date you receive it.
• Ask a lawyer whether you need leave of the court and which forms to file.
• If you think a child is in danger or at risk of being taken out of the country, call the police right away. A lawyer can help with next steps afterward.

Consider whether an agreement with the child's parent is possible. Parties are expected to protect the child from conflict arising from the case as far as they are able.

Frequently asked questions