I was asked a question during my radio show on Fairchild Radio a few weeks ago about an interesting scenario. A Chinese couple had a child during marriage. A few years ago, the mother divorced the father and then the mother hooked up with a boyfriend from Brazil. The mother had sole custody of the child while the father had access only. As such, the Brazilian boyfriend acquired the title of step-father to the child.
However, a few months ago, the mother died and left the child with all of her possessions and assets. Both the Brazilian boyfriend and the biological father then applied to the court for sole custody to the child. Basically, whoever gets custody to the child can manage the mother’s estate assets. The legal questions are: "Can the step-father obtain sole custody of the child?" "Is there anything the biological father do to stop the step-father from obtaining sole custody to the child?"
The Children's Law Reform Act of Ontario provides the answer to this question. Under the definition of “parent”, it provides three ways a person can become a parent to the child:
1. By being the biological parent of the child;
2. By being the adoptive parent of the child; or
3. By obtaining a court order or court declaration of a non-parent custody.
A step-parent will not automatically have child custody. In order for the step father to have custody over the child, the step-father will need to make a court application for a “non-parent custody” order. Before granting such order, the court will consider the following factors.
1. The opinion of the child – who does the child choose to be his/her father?
2. Representations of the person – Whether the step-father is trustworthy?
3. Intention – Why would the step-father want to take custody of the child?
4. Whether the child participates in the extended family as would a biological child?
5. Whether the step-father provides financially for the child?
6. Whether the step-father disciplines the child as a parent?
7. Whether the step-father represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child?
8. The child's relationship with the absent biological parent
In order for the Chinese biological father to obtain sole custody of the child, he will need to prove to the court that the step-father cannot meet the above factors. The biological father will need to demonstrate to the court that he has the resources and time to take care of the child and most importantly, that it is in the best interest of the child to grant the father sole custody.