Court File and Parties

Date: January 8, 2018

Court File No.: 11242/17

Ontario Court of Justice

Between:

Jennifer Agmon

Applicant

- and -

Dwayne James and Natalie Morris

Respondents

Counsel:

Michelle Meighoo, duty counsel, for the Applicant

Dorothea Dadson, duty counsel, for the Respondent, Dwayne James

Minipreet Bhatia, duty counsel, for the Respondent, Natalie Morris

Heard: January 4, 2018

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The applicant, Jennifer Agmon (the stepmother), is the stepmother of a 9-year-old boy (the child). She seeks an order of temporary access to the child on alternate weekends from Friday evenings until Sunday evenings, together with 3 weeks of summer access.

[2] The respondent, Dwayne James (the father), is the child's father. The respondent, Natalie Morris (the mother), is the child's mother. They both oppose the stepmother having any access with the child.

[3] The stepmother filed her own affidavit and those of five collateral witnesses in support of her motion. The mother filed an affidavit. The father did not file an affidavit, but was permitted to provide oral evidence. The stepmother was given the opportunity to provide oral evidence in response to the father's testimony. The mother was also given an opportunity to provide additional oral evidence, but declined.

[4] This case raises issues about the access rights of a person who has formed a settled intention to treat a child as a child of his or her own family and the autonomy of parents to make access decisions for their child with respect to such a person.

Part Two – Brief Background

[5] The mother and father have the one child together.

[6] The mother and father have always co-parented the child without a court order or a formal separation agreement. The child spends weekdays with the mother and weekends with the father.

[7] The stepmother and the father began living together in March, 2009. They married in October, 2011 and separated in November, 2016.

[8] The father has a 20-year-old daughter from another relationship (the sister). The sister has lived with the stepmother since the stepmother and father separated.

[9] The stepmother has no other children.

[10] The stepmother has only seen the child four times since she separated from the father. The child continues to spend each weekend with the father.

[11] The stepmother issued her application on July 19, 2017. The mother and father have denied her any contact with the child since then.

Part Three – Legal Pathway

[12] Section 21 of the Children's Law Reform Act (the Act) permits a parent of a child or any other person, including a grandparent, to apply for an order respecting custody of or access to the child or the incidents of custody to the child.

[13] Subsection 24 (1) of the Act sets out that the merits of a custody or access application shall be determined on the basis of the best interests of the child. Subsection 24 (2) of the Act sets out criteria to assist the court in determining the child's best interests.

Part Four - Best Interest Factors

[14] The following is the court's analysis of the best interest factors set out in subsection 24 (2) of the Act.

Factor #1: The Love, Affection and Emotional Ties

Between the child and:

• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the child's care and upbringing.

[15] The mother and father both have excellent relationships with the child.

[16] The mother and father both minimized the stepmother's relationship with the child. They stated that the stepmother worked long hours and often wasn't present on weekends when she lived with the father. They claim that the child does not miss the stepmother.

[17] The court found the stepmother's evidence about her relationship with the child much more convincing. She was able to provide clear and detailed evidence about the important role she has played in the child's life.

[18] The stepmother clearly views the child as her own and loves him very much. She has been intimately involved in all aspects of his life since he was one year old. She and the father cared for him every weekend and on extended holidays. She treated the child as a member of her family.

[19] The stepmother's description of her relationship with the child was supported by collateral witnesses, including her sister, a friend, the father's sister and the child's cousin.

[20] Before this litigation started, it was apparent that the mother appreciated the importance of the child maintaining his relationship with the stepmother. On December 22, 2016, the mother sent the stepmother a text message that the child misses her. On February 1, 2017, she sent the stepmother a text that the child is going to be happy to see her.

[21] Although she minimized the stepmother's relationship with the child, the mother is seeking child support from her. The stepmother needs to have formed a settled intention to treat the child as a child of her own family to be defined as a parent who has a support obligation under the Family Law Act. The factual foundation for the mother's support request is inconsistent with her evidence about the child's relationship with the stepmother.

[22] The stepmother's commitment to the child was apparent when she testified that she understood that she now had a child support obligation and was prepared to meet it.

[23] The court appreciates that the parties have not yet been cross-examined and that the evidentiary record is far from complete at this stage. However, based on the affidavit and oral evidence presented, the mother has established a strong prima facie case that she has formed a settled intention to treat the child as a child of her own family. She has also established that she has a very close, loving and important relationship with the child.

[24] The stepmother's relationship with the child has been compromised by the decision of the mother and father to restrict his contact with her.

[25] It was not disputed that the child also has a close relationship with the sister who is living with the stepmother.

[26] The father claimed that the sister has had unrestricted contact with the child. The court preferred the stepmother's evidence that the father has had a falling-out with the sister (due to her decision to remain with the stepmother) and has restricted her contact with the child. It is unusual that the father's daughter would choose to remain with the stepmother absent conflict and this provides some support for the stepmother's version of events. Further, the father acknowledged that he is in conflict with many of his family members and has stopped his and the child's contact with them. A pattern of arbitrary behaviour towards people he is in conflict with is emerging.

[27] The father's credibility has also been hurt by his conduct. The evidence was convincing that the father actively avoided service of this application, delaying this case. More troubling is the stepmother's evidence that the father was insisting on sex with her as a precondition for access. The mother attached a series of text messages from June 23, 2017 that provides corroboration for this allegation.

[28] The child also has close relationships with friends in his former neighbourhood and with his extended family members. The collateral affidavits filed on behalf of the stepmother show that there are many friends and family who care about the child. Many of these relationships have ended since the stepmother and the father separated and the child's friends and family miss him. The stepmother plans to facilitate these relationships if she is granted access.

[29] The mother and father minimized the importance of these relationships for the child.

[30] However, an exchange of text messages between the mother and stepmother on June 25, 2017 reveal that the mother thought differently at that time:

Stepmother: I'm just asking for access that's it! Once a week, twice a month, dinner every Monday after school, I don't care! It just has to be steady and routine for him.

Mother: I guess you will have to take him to court to get visitation.

Stepmother: he is leaving me no other option…its been 6 months and he has been here 4 times inconsistently. The last time he hugged me and cried for 20 min. Its abusive what he's doing. He misses his room, his friends, his family and his sister. Its not right….

Mother: I agree

Factor #2: The Child's Views and Preferences

If they can reasonably be ascertained

[31] The court has referred the case to the Office of the Children's Lawyer to obtain independent information about the child's views and preferences.

[32] The exchange of texts between the mother and stepmother reveal that the child misses the stepmother, his sister and his friends.

Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment

[33] The mother and father have had a stable co-parenting arrangement since the child was born.

[34] The stepmother was an important part of providing the child with a stable home environment from May, 2009 (when the child was age one) until November, 2016.

Factor #4: The Ability and Willingness of Each Person Applying for Custody of the Child

To provide the child with guidance and education, the necessaries of life and any special needs of the child.

[35] The parties are all capable of providing the child with guidance, education and the necessaries of life. They are all able to meet his needs.

Factor #5: Any Plans Proposed for the Child's Care and Upbringing

[36] The mother's and father's plan is for the child to have no access to the stepmother.

[37] This plan is not in the child's best interests. It deprives the child of an important relationship with the stepmother. It also adversely impacts his relationships with his sister, friends and extended family.

[38] The stepmother's plan for alternate weekend access is too much at this time and is also not in the child's best interests.

[39] The child is used to spending every weekend with the father. The child has had little access with the stepmother for fourteen months. He will also likely need some time to adjust to a new parenting schedule. The court is very aware that the child will be placed in the middle of a high conflict situation. As much as possible, the court wishes to insulate the child from this conflict. At this point, it is in the child's best interests to be cautious about the frequency of his contact with the stepmother as the court continues to evaluate the situation.

[40] It is in the child's best interests to spend extended time with the stepmother when he does have access with her. He grew up in her home and is comfortable there. He will have the opportunity to have relationships with friends and extended family members when he visits with her.

Factor #6: The Permanence and Stability of the Family Unit

With which it is proposed that the child will live

[41] All of the family units are stable.

Factor #7: The Ability of Each Person Applying for Custody of or Access to the Child to Act as a Parent

[42] The mother and father submit that the stepmother should not have access with the child, alleging the following:

a) On one occasion, the stepmother did not properly supervise the child and he engaged in sexual play with a friend. Subsequently, the stepmother disregarded the parents' direction that he was not permitted to play with this friend.

b) On another occasion, the stepmother did not properly supervise the child and he was scratched by the stepmother's cat. Subsequently, the stepmother lied to the mother about getting rid of the cat.

c) They do not trust the stepmother.

d) The stepmother inappropriately quizzes the child about them.

[43] The stepmother was able to refute these allegations to the court's satisfaction.

[44] The stepmother explained that the incident with the child's friend happened when the child was four years old. The children had taken off their pants and were dancing around. The stepmother was not at home when this happened – the father was at home with the child. The stepmother and father discussed privacy with the child and the issue never arose again. The mother was upset when she learned of this incident and insisted that the child have no contact with his friend. The child did not understand why he could not play with him. After six months, the child went back to playing with his friend and this wasn't raised again as a concern (for many years) until the stepmother started this case.

[45] The stepmother stated that the incident with the cat happened when the child was two years old. She said that the cat's nails were cut. She said that the child loves the cat and no one objected to the cat being in the home again until this court case started.

[46] The court preferred the stepmother's evidence to that of the mother and the father about these allegations. The stepmother's evidence was precise, consistent and detailed.

[47] The stepmother established a real concern that the father has not been acting in good faith. In addition to his insisting on sexual favours in exchange for access to the child, the stepmother provided texts from the father saying that his mission was to make her unhappy and to make sure she didn't get what she wanted. The mother also texted the stepmother in March, 2017, "I guess he just wants to punish you for some reason", when the stepmother could not understand why the father was denying her access. The father's behaviour adversely affects his credibility.

[48] It is also apparent from the text messages that, as late as June 23, 2017, the mother was supporting the stepmother having access with the child. The concerns she raises now were not impediments to the stepmother having access at that time. It was only when the stepmother started this court case in July, 2017 that the mother changed her position. This adversely affects the mother's credibility.

[49] An important part of responsible parenting is putting your child's interests ahead of your own. This includes facilitating a child's important relationships, even when your own relationship with these persons have broken down and this becomes awkward or inconvenient. The mother and father have been failing the child in this area.

[50] The court finds that the stepmother has been acting appropriately.

Factor #8: The Relationship by Blood or Through an Adoption Order

Between the child and each person who is a party to the application.

[51] This is the only clause in subsection 24 (2) of the Act which distinguishes biological parents from non-biological persons in a custody/access "best interests" analysis.

[52] In Hernandez v. Nikas, at paragraph 76, Justice P.J. Henderson wrote the following about this factor:

It is to be noted that this consideration comes at the end of a long list of factors the court is to take into account. It is accorded no special status that suggests it should take precedence over any other consideration when determining the child's best interests. In other words, it is but one factor the court should consider.

[53] Justice Henderson referred to Law v. Siu, where the Ontario Court of Appeal upheld the trial judge's decision granting the children's maternal grandparents custody over a claim by their father in a situation where their mother had died. The Court of Appeal agreed with the trial judge's interpretation that a blood relationship was but one factor and that she had otherwise correctly decided the issue of custody in the child's best interests.

[54] Justice Henderson concluded at paragraph 84 of his decision that subsection 24 (2) of the Act is clear that any decision made under the Act must be made solely on the basis of the child's best interests. The stepmother's status as a non-parent under the Act is only one factor for the court to consider.

Part Five – Parental Autonomy

[55] The mother and father submit that they should have parental autonomy to determine if the child sees the stepmother.

[56] The case law regarding parental autonomy is commonly cited in grandparent access cases where a child's parents oppose grandparent access. This line of cases, starting with Chapman v. Chapman, state that considerable weight should be given to the wishes of the custodial parents in determining access. This line of case law examines any positive pre-existing relationship between the child and the person seeking access, whether that relationship will be imperiled by the custodial parent's decision and whether the custodial parent is acting arbitrarily. See: Giansante v. DiChiara.

[57] It would be in the child's best interests to have temporary access with the stepmother even if this more stringent test was applicable in this case since:

a) The stepmother had a very important pre-existing relationship with the child;

b) The decision of the parents to deny her access imperils that relationship; and

c) The parents are acting arbitrarily and unreasonably.

[58] However, the court finds that this line of case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family. Their status is different than family or community members who have not formed the requisite settled intention.

[59] This higher status is reflected in subsection 62 (3) of the Act. This subsection requires that a person who has formed a settled intention to treat the child as a child of his or her own family shall be named as a party in any custody or access case involving the child. This is not a right afforded to a family or community member who has not formed the requisite settled intention. Subsections 62 (1) – (3) of the Act read as follows:

62 (1) An application under this Part may be made in the same proceeding and in the same manner as an application under the Family Law Act, or in another proceeding.

Nature of order

(2) An application under this Part may be an original application or for the variance of an order previously given or to supersede an order of an extra-provincial tribunal.

Parties

(3) The parties to an application under this Part in respect of a child shall include,

(a) the child's parents;

(b) a person who has demonstrated a settled intention to treat the child as a child of his or her family;

(c) a person who had the actual care and upbringing of the child immediately before the application; and

(d) any other person whose presence as a party is necessary to determine the matters in issue.

[60] A person who has formed a settled intention to treat the child as a child of his or her own family not only has additional rights regarding the child – they have additional obligations. Pursuant to subsection 1 (1) of the Family Law Act they are included in an expanded definition of parent and have child support obligations. This is an obligation that is not imposed on family or community members who have not formed this settled intention.

[61] Here, the stepmother assumed a role as a third parent to the child. While the wishes of the mother and father are given some consideration, they do not have the parental autonomy to exclude the stepmother from the child's life.

Part Six – Summary

[62] The court finds that it is in the child's best interests to have meaningful temporary access with the stepmother because:

a) The child loves the stepmother and the stepmother loves the child.

b) The child views the stepmother as a parent and the stepmother treats the child as her own child.

c) The child has an important relationship with the stepmother that needs to be preserved and fostered.

d) Access with the stepmother will ensure that the child can have important relationships with his sister, friends and extended family members.

e) The court is satisfied that the stepmother will act responsibly in parenting the child.

[63] The court will set out a specific access schedule to accomplish the objectives of the child having meaningful access with the stepmother, not disrupting his stability and protecting him from adult conflict. On a temporary basis, access will take place with the stepmother on one weekend every four weeks. This will not interfere with the mother's parenting time.

[64] The court will not make a temporary summer access order at this time as requested by the stepmother as it intends to review the access issue before then.

Part Seven – Conclusion

[65] A temporary order shall go on the following terms:

a) Starting on Friday, January 19, 2018, the stepmother shall have access with the child from Friday at 6 p.m. until Sunday at 6 p.m. on every fourth weekend. The weekend will start on the Thursday at 6 p.m. if the Friday of the access weekend is either a professional development day or statutory holiday. The weekend will extend until Monday at 6 p.m. if the Monday of the access weekend is either a professional development day or a statutory holiday.

b) The access exchanges shall take place at the mother's home.

c) The mother and father are not to cancel any visit unless the child has a medical emergency. If any visit is cancelled, the child shall spend the following weekend with the stepmother.

d) The case shall return to court on April 12, 2018 at 10:00 a.m. for a case conference.

e) If the stepmother seeks her costs of this motion, she is to put the mother and father on notice, in writing, about how much she is seeking and this issue will be dealt with on the next court date.

[66] The court expects the mother and father to promote and facilitate the access that it has ordered. The child has the right to enjoy relationships that are important to him.

[67] The court thanks counsel for the excellent assistance they provided the parties.

Released: January 8, 2018

Justice S.B. Sherr

Footnotes

[1] The stepmother does not fall within the definition of parent set out in subsection 4 (2) of the Act.

[2] The father claimed that this incident took place in 2016.

[3] It remains to be seen as to whether the recent amendment to section 21 of the Act, which adds the phrase "including a grandparent" to any parent or person who can apply for custody or access to a child will elevate the status of a grandparent in these cases.