Stepparents and Parenting Rights in Ontario After a Breakup

If you lived with a child, shared the school runs and the bedtime routines, and then the relationship with the child's parent ended, you may be wondering whether you have any say about seeing the child. The honest answer is that it depends on your status and the facts.

This article explains in general terms how Ontario law treats stepparents, which statute may apply, and what the process looks like. It is not a prediction of how a court would decide your case.

Where a stepparent stands in the law

A child's parents have an equal right to decision-making responsibility, whether or not they were ever married. A stepparent is generally not one of those parents. A parent includes the birth parent and a person presumed to be a parent in the situations the law lists, such as being the birth parent's spouse at the birth.

That does not leave a stepparent without options. A person who is not a parent, such as a grandparent or stepparent, may apply for a parenting order on decision-making responsibility or for a contact order. Which statute governs depends on whether you were married to the child's parent.

Which law applies: Divorce Act or Children's Law Reform Act

The Divorce Act governs parenting between married spouses, and the CLRA applies to unmarried or common-law parents and to married parents who are not divorcing. The two statutes have parallel but separately numbered sections.

Under the Divorce Act, the 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 person who is not a spouse also needs leave of the court before applying for a parenting order. For contact, a person other than a spouse may apply for a contact order and leave of the court is required.

Contact versus decision-making

These are different requests. Decision-making responsibility covers significant decisions about a child's well-being, including health, education, culture, language, religion and spirituality, and significant extra-curricular activities. The Divorce Act allows it to be allocated to either spouse, to both, or to a non-spouse.

Contact is about time and communication with the child. In deciding whether to make a contact order under the Divorce Act, the court considers whether contact could happen anyway, for example during another person's parenting time. Practically, a stepparent who has a good relationship with the child's parent may find an informal or agreed arrangement easier than a court order.

Whether you could succeed in either request depends on the facts and on what is best for the child, as explained next.

How the court decides, and what you must file

The court's primary consideration is the child's physical, emotional and psychological safety, security and well-being. Best-interests factors include the child's needs, the child's relationships, the history of care, the child's views and preferences, and each person's ability to care for the child. The list is not exhaustive. Your history as a caregiver and the child's bond with you are the kind of facts that may be relevant.

An application for a parenting order under the Children's Law Reform Act must include an affidavit with the applicant's proposed plan for the child's care and upbringing and details of any earlier family or criminal proceedings. What a Divorce Act application must include is worth confirming with a lawyer. As a non-parent seeking decision-making responsibility under the CLRA, you must also file a recent police records check and ask for a search of child-protection records. Practical points from Ontario's guidance:

• Serve the police record check on the other parties and file it with the court within 10 days of receiving it.
• 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.
• Parents file Form 8 and Form 35.1 (Part A); 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.

What to do next

• Work out whether you were married to the child's parent, and whether a divorce is under way.
• Gather proof of your role: school and medical contacts, photos, messages, caregiving history.
• Try a respectful conversation or agreement first; parties are expected to protect the child from conflict and, where appropriate, try a family dispute resolution process.
• Order a police records check early so you are ready to file it within the deadline.
• Speak to a lawyer before applying, especially if leave of the court may be needed.

Frequently asked questions