Recent case: Step-parent parenting time

Ball v McKenzie 2021 ONSC 1150: The parents in this case lived together for about 16 months and are the parents of one child, a son, who was three years old at the time of the mother’s motion. The mother also had a daughter, from a prior relationship, who lived with the family. She was four years old at the time of the motion.

The father was removed from the family home because of an incident of domestic violence and, shortly thereafter, the mother started an application seeking custody of both children, with the father to have supervised access. The family court granted a restraining order.

The father agreed to supervised access to take place during the day. After several months, he brought a motion for overnight access. The mother was not prepared to consider overnight access for her daughter, even though both children had had equal time with the father up to this point. The father had been paying the full guideline level of support for both children.

The father’s motion also requested a reduction in child support because his income had decreased.

Because the parents were not married, the issues were dealt with under the Children’s Law Reform Act.

In making his decision, Justice McDermot noted several factors:

• The son was spending overnights with the father at the time of the motion
• Only one of the best interests of the child criteria speaks to a blood relationship between the child and the parent; the test is largely focused on other considerations
• The father had demonstrated a settled intention to treat the daughter as his own, which the mother did not deny
• The daughter has a close relationship with the father as well as his family, which the mother did not deny
• The mother provided little evidence that increased time with the father would not be good for her
• The daughter’s views and preferences were not known to the court, as the parents’ evidence on this was completely contradictory
• While domestic violence must be considered, there was no recent evidence of such behaviour by the father towards the mother

Justice McDermot made much of the fact that the mother, while she expressed significant concerns about the father’s parenting to support her position that the daughter should not have overnight time with him, was permitting the son to have extended access with the father, with no apparent concerns:

I discount allegations about the caregiving provided by the Respondent [father]. If the Respondent is providing inadequate care of the children, then why is the Applicant [mother] permitting [the boy] to go on overnight access? . . . It is clearly inconsistent to say that [the girl] should not have overnight access to this supposedly neglectful parent while [the boy] can have that access.”

He also noted:

It is refreshing to see a stepparent sufficiently engaged to continue seeing his stepchild to both fight for this in court and to pay full support for that child after separation. From the child’s perspective, that should be supported by the court, not discouraged.

Justice McDermot ordered that the daughter have the same access with the father as her brother, including overnight access every other weekend.