Grandparents Rights in Ontario: Grandparent – Grandchild Access
Grandparents play an important role in the child’s upbringing. They provide love, comfort, guidance, and companionship to a Child. When parents separate, grandparents access to their grandchildren may be frustrated due to family conflict. No loving grandparent wants to be estranged from their grandchild.
We have dealt with a number of cases wherein grandparents cared intimately for their grandchildren during the parties marriage and then that relationship is severed once the parents separate (or when one parent dies). The root cause is often due to dispute over money, control, anger or just out of spite. It is not because it is no longer in the child’s best interest to have a strong relationship with their grandparent. This can be very distressing for the grandparent and the child. For example, we acted for a grandmother who, after her son had died, was denied contact with her grandchild by the mother. The grandmother had played an active role in the live of her grandchild. The court found that it was in the best interest of the grandmother to have access to her grandchild and the Order was made to facilitate their relationship.
The right of a grandparent to have access to a grandchild is dependent if the parents are separated and not married (it would then be governed by the Children’s Law Reform Act) as opposed to if the parents are Divorced or seeking a divorce (in which case the Divorce Act applies).
Grandparents rights under the Children’s Law Reform Act
Historically, grandparents have not been granted clear rights regarding contract with their grandchildren in Ontario. However that changed when Bill 34 (s.21(1) of the Children’s Law Reform Act – hereinafter the “CLRA”) gave grandparents the right to make an argument for access in custody disputes.
The Act provides as follows:
“s.21 (1) A parent of a child, or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child”
The CLRA applies when the parents are not married or have only separated and not Divorced. The Divorce Act applies when the parents of the Child are already divorced or are seeking a Divorce.
The CLRA does not automatically grant a grandparent the right to have access to a grandchild. The court still has discretion to determine if such access is in the best interest of the Child, considering the circumstances.
If you are a grandparent that wishes to get access to his/her grandchild, please contact us to discuss your rights. Our family lawyers will use their experience and skill to advocate on your behalf and demonstrate that it is in the best interests of your grandchild to have a relationship with you.
Factors to consider when evaluating Grandparents Access to his/her Grandchild under the CLRA:
According to the Children’s Law Reform Act, the court will examine the following factors to determine if it is in the child’s best interests for a grandparent to have access to a child:
- The child’s needs, given the child’s age and stage of development, such as the child’s need for stability.
- The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life.
- Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent.
- The history of care of the child.
- The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
- Any plans for the child’s care.
- The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.
- The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child.
- Any family violence and its impact on:
- The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.
- The appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.
- Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
The case of Chapman v. Chapman involved an intact family wherein the grandmother was seeking access to her grandchildren, aged 8 and 10. The parents stated that the grandmother had a very poor relationship with their Children but they did acknowledge that it spending time with their grandmother may be beneficial to the Children. Therefore, the issue to be determined by the court was not whether or not access was to take place, but the frequency and nature of the access. The judge acknowledged the parents role in raising the children, he stated:
“Their right to independently raise their children should not be lightly interfered with…. Ideally the parties would be left to make their own schedule; however, the parents made it so difficult to negotiate that procedures to resolve scheduling disputes must be utilized.[27]”
The judge granted access to the grandmother. However, the position of the parents was they only they should determine how often their children should have access to the grandmother. As a result, they appealed the judge’s decision to the Ontario Court of Appeal.
The Ontario Court of Appeal set aside the trial judge’s decision and held that parents are presumed to act in the best interests of the Children and they should decide with whom they wish their children to interact.
As a result, the court usually defer to parental authority unless the following can be demonstrated:
- A positive grandparent- grandchild relationship exists (ie. they have a strong and loving relationship having spent time together and the relationship should be encouraged because it is in the best interests of the child);
- The parent’s decision have negatively impacted that positive relationship;
- The parent has acted arbitrarily
Grandparent Access when the parents are Divorced or seeking a Divorce
As stated previously, if the parents of the Child are divorced or pursuing a Divorce in court, grandparent rights are determined under the Divorce Act.
Section 16 of the Divorce Act allows standing for individuals, other than spouses, to apply for custody of, or access to, a child. Section 16 says the following:
- (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of, or access to, any or all children of the marriage.
- (2) Where an application is made under (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to any or all children of the marriage pending determination of the application under (1).
- (3) A person other than a spouse, may not make an application under (1) or (2), without leave of the court.
Therefore, under the Divorce Act , non-parents, including grandparents, can apply for custody of, or access to, a child. However, non-spouses, must first obtain leave of the court to pursue an application for custody or access to a child.
The courts have had that in order for a grandparent to have a right to apply for access to a child they have to establish that they already have a close relationship with the Child at the time of the Application and are not using the application to create or establish a relationship. The courts have held that grandparent access is the right of the grandchild and not the grandparent. As with the CLRA, the governing principle for granting access is a determination of the best interests of the child.
Factors to consider when evaluating Grandparents Access to his/her Grandchild under the Divorce Act:
Best interests of the child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
- (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
- (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- (d) the history of care of the child;
- (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
- (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- (g) any plans for the child’s care;
- (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
- (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
- (j) any family violence and its impact on, among other things,
- (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
- (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Can a Parent refuse Grandparents visitation rights?
If you can demonstrate that it is not in the child’s best interests to allow the child to be cared for by his/her grandparent, a parent can refuse to allow a grandparent to visit his/her grandchild.
Conclusion
Grandparents can play a positive and enriching role in the lives of their grandchild. If it is in the best interests of a child, a separation/Divorce should not sever the bond between a child and his/her grandparent. In a lot of cases, it may be appropriate to use Mediation to help parents and grandparents come together to work out an access arrangement that allows grandchild to maintain an existing relationship with their grandparents, while at the same time allowing the parents to preserve their role in their children’s lives.
At Fine & Associates PC, if you are a grandparent, our experienced family lawyers in Toronto can assist you in maintaining your relationship with your grandchild if you are refused contact him his/her. In the alternative, if you are a parent, and do not believe that it is in the best interests of your Child to visit with his/her grandparent, we can advocate on your behalf. Please feel free to contact us to discuss your concerns.