January 8, 2025 – The Term “Parent”

“The term “parent” is defined in Part V, CHILD PROTECTION, Section 74(1) of the CYFSA.  For the purposes of this proceeding, the relevant portions are as follows:

“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

              1. An individual who has lawful custody of the child.
              2. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.

Counsel for J.A. refers to the Divorce Act, the Family Law Act, the Children’s Law Reform Act and the Succession Law Reform Act to illustrate the various tests that are applicable in determining a non-biological person’s rights and obligations to a child.

Counsel for J.A. alleges that as J.A. is a stepfather of A.H.H. and consequently has rights as applicable under the Divorce Act and in the Children’s Law Reform Act. Counsel for the mother submits that the term “settled intention” is akin to the term being found in “loco parentis”.

As this is a child protection matter, I find that the appropriate definition of “parent” in Section 74(1) of the CYFSA is the applicable test.

I find J.A. must provide prove, on a balance of probabilities, that he has demonstrated a settled intention to treat A.H.H. as his own in the 12 months prior to the commencement of the child protection proceedings or that he had lawful custody.

I accept that the decision to declare J.A. a “parent” within section 74(1) of the CYFSA is discretionary and the court must consider all of the relevant factors on the facts of each case in exercising that discretion.

I agree with the position of the CAS that the issue of settled intention was addressed by the court in a 2002 decision in Children’s Aid Society of Haldimand-Norfolk v A. (LM) 2002 CanLII 78100 (ON CJ), 33 RFL (5th) 54. I agree that the factors set out by the court in paragraphs 16 and 17, although under the previous legislation, is applicable under the current legislation including:

          1. The overriding onus rests with the applicant the Society. Intention is in dispute and therefore, individual facts of this individual case require that it be dealt with its own merits. The Society must show more than a conduct of common courtesy or hospitality on the part of the respondent Mr. Robert A. The facts of family life established by evidence must show a pattern of responsibility for the child by the parent arising out of a demonstrated settled intention consciously formed and firmly established. The onus to rebut an existing settled intention rests with the respondent Mr. Robert A. and it is a heavy one. See Spring and Spring, supra, and Cassar-Fleming v. Fleming(1996), 1996 CanLII 19729 (ON SC), 20 R.F.L. (4th) 201, [1996] OJ No 675, 1996 CarswellOnt 789 (Ont. Gen. Div.).
          2. Here, the length of cohabitation in a shared residence, common surname, responsibility for all expenses over a lengthy time, and a history of Children’s Aid Society material showing shared parenting for Amelia Rose E. — all show a long-term commitment to Amelia Rose E. by the respondent Mr. Robert A.’s demonstration of a settled intention to treat her as a member of his own family. The onus with respect to the Children’s Aid Society case is met and the fact of settled intention is not rebutted by the respondent Mr. Robert A.

In Spring v Spring [1987] OJ No 2655, the court considered various factors in determining settled intention, including the place where the child live, the manner in which expenses of the child were discharged, the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled” denoted quality and not duration and once settled intention has been demonstrated, a change in that intention does not negate the obligation of support.”

Children’s Aid Society of Ottawa v. E.V.B.H. et J.A., 2024 ONSC 891 (CanLII) at 21-28

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