Historically, grandparents are not granted clear and specific rights to exercise access to their grandchildren. In the court’s opinion, grandparents are considered legal strangers or third parties. Unless grandparents have a legal right to access, they do not have prima facie right to have access to their grandchildren despite their biological relationship to the child.
However, any person, who affects the child’s best interests, may apply to the court for access to the child. In the circumstance that parents alienate the child or deny access of the child to the grandparents, The Children’s Law Reform Act and the Divorce Act could apply in granting grandparents their rights of access through “contact orders.” Situations where grandparents take legal action against the parents to reinstate access typically arise where the grandparents play a significant role in the grandchild’s life, and where there is a strong emotional bond between them. A Family Law lawyer could effectively present a grandparent’s right to access case showing how the custody or access will benefit the child/children.
In 2006, Bill 34 was passed, which amended the Children’s Law Reform Act (“CLRA”) with the inclusion of section 21(2), allowing grandparents to bring an application in court for access to their grandchildren. Even so, Bill 34 will not automatically grant a grandparent this right, it is in the discretion of the court when considering whether to grant a grandparent access to their grandchildren. The courts will look at what is in the best interests of the children using the best interests test found in section 24(3) of the CLRA, courts consider the following:
- 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;
- the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
- 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, among other things,
- the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child, and
- 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; and
- any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child.
Moreover, the leading and paramount case on grandparents’ rights is Chapman v. Chapman 2001 CanLII 24015 (ON CA)., where the Ontario Court of Appeal states that the main question is not about what is good for the grandparent, but what is in the best interests of the children. Nevertheless, the courts also found that deference should generally be given to the custodial parents to respect the autonomy of the parents and their decisions unless these three questions are answered and in the affirmative:
1. Does a positive grandparent-grandchild relationship already exist?
2. Has the parent’s decision imperiled the positive grandparent-grandchild relationship?
3. Has the parent acted arbitrarily?
When considering these individual factors, if a grandparent is denied access by the custodial parent, the threshold to prove the best interest of the child and override deference is very high. The grandparent’s relationship with the child should ideally enhance the emotional well-being of the child. When the positive relationship is imperiled arbitrarily, is when the courts may intervene to preserve the benefit of that relationship. The courts will settle each case on its own individual and unique facts. Broadly speaking, however, the courts will shy away from interfering with what has been decided for the children by their parents unless those decisions are proven to not be in the best interests of the children.
At Nussbaum Law, we are committed to learning the particulars of your specific case and assisting you.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.