Grandparent access is a complicated issue and has changed significantly in recent years. Historically third parties – including grandparents – had no legal right to claim access to children. Legal rights to seek access to children were reserved for parents, who, as long as they were fit, also had the right to decide who could have contact with their children. Now however, every Canadian jurisdiction permits grandparents to apply for access with their grandchildren, but, it is still a difficult hurdle to cross. The debate continues over the boundaries between a parent’s right to choose who their children will interact with and what adult/child relationships a Court will step in to protect.
In both the federal Divorce Act, and the provincial Children’s Law Reform Act, the decision to grant grandparents specific access will be determined by an analysis of the best interests of the child. The differences between the two are minor, however, the Divorce Act, treats grandparents the same as any other person, who are is not a parent of the child, and they have to ask the Court for permission before bringing an application. In the Children’s Law Reform Act, grandparents are specifically mentioned by the legislation, and do not need to get permission before applying. The legislation that you would need to use depends on the child’s parents. If they are in the midst of a divorce, and a grandparent wants to apply for access, it would fall under the Divorce Act. At any other time, it would fall under the provincial act.
As the law in Ontario currently stands, grandparents may apply to the Court for custody of or access to a child when:
- Parents separate or divorce;
- A parent dies and the surviving parent moves with the grandchildren to another place;
- If they are alienated from a parent and don’t speak with them or see them; or,
- If they looked after the grandchildren for a period of time but the grandchildren have since returned to their parents
A grandparent therefore cannot assume they will get grandparent access simply because they want to see their grandchildren more, if none of these circumstances apply.
In addition to the above, the Courts have created three questions which must be answered in the affirmative, before they will override a parent’s decision about who their children will have access with.
1. A positive grandparent-grandchild relationship already exists;
2. A parent’s decision has imperilled the positive grandparent-grandchild relationship; and,
3. The parent acted arbitrarily in making that decision.
It is important to note that just because a Judge can say yes to all three, it does not automatically mean grandparents will be granted access. It simply means that a Judge can then do so if they feel it is in the best interests of the grandchildren.
Factors a Judge Will Consider
Once a grandparent applies for access, the Court will analyze a number of factors to determine the nature of the relationship, including whether or not:
1. The grandparent acted unreasonably ;
2. The grandparent acted against the child’s best interests ;
3. The grandparent made unreasonable demands for access;
4. There is a history of a strong, positive relationship with the grandchild;
5. The grandparent previously acted as a caregiver to the child;
6. The child ever lived primarily with the grandparent; and,
7. The grandparent is likely to play a positive role in the child’s life.
Simply because a grandparent has cared for a grandchild in the past, it does not provide an automatic right to access, even if the grandparent-grandchild relationship was positive. As seen from Chapman v. Chapman below, the Court will often still give deference to the child’s parents.
The Law Applied
Chapman v. Chapman, 2001 CanLII 24016 (ON CA), is one of the most important cases with regards to grandparents’ access rights and it was decided by the Court of Appeal. The case was about a grandmother who applied for 10 visits per year of 4.5 hours each with her grandchildren. The children’s parents were not divorcing at the time, they simply felt that the grandmother was intrusive and interfering with their parenting. The parents acknowledged that their children should have a relationship with their grandmother but firmly believed that the duration and frequency of visits should be solely up to them as parents. While the initial Court disagreed and granted the grandmother the specified access she requested, the Court of Appeal actually overturned this and followed the parents’ wishes. The Judges pointed out that the parents were loving, devoted parents, committed to their children’s well-being. They stated that there was no evidence that the parents were withholding access to be malicious, rather they were acting in what they believed was in the best interests of their children. The Court of Appeal concluded that while it was understandable for a grandmother to want more contact with her grandchildren, the right to decide the extent of that relationship should be up to the children’s parents, not her or a Court of law.
One reported case where grandparent access was granted was in Thompson v. Thompson, 2016 ONSC 6087 (CanLII). Here the Judge stated that the grandparents had participated in all aspects of their grandchildren’s lives, including, providing childcare, arranging extracurricular activities and medical appointments, paying for dental care, assisting with housekeeping, arranging and paying for preschool and more. The grandparents were clearly very involved, and the parents had accepted this assistance with gratitude, prior to having a change in attitude. As a result the grandchildren were extremely close with their grandparents and the Court felt that it was in their best interests to step in and ensure that the close bond was maintained. In addition, the Judge felt that the mother was struggling with her mental health and not in a position to be the children’s primary parent at that time. He therefore ordered a shared custody arrangement between the mother and the grandparents, on a temporary basis until the mother was able to take further steps to deal with her mental health struggles.
Grandparent access is not a simple issue. It is very case-dependent and the results will vary based on each family’s specific circumstances. As a grandparent considering applying for access or a parent considering stopping access between their children and their parents, there are many factors to consider. The consequences to the bonds between yourselves, the children and the parents could be irreparably altered. It is therefore important to carefully consider whether to pursue grandparent access, or whether to refuse grandparent access.
If you have any questions about your potential rights either as the parent or grandparent of a child, please do not hesitate to contact the lawyers at M. G. Michaels & Associates who would be happy to assist.
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