Case Summary: Grandparent contact with grandchildren
Family law legislation in a number of Canadian jurisdictions – Quebec, British Columbia, Alberta, New Brunswick and the Yukon – grants grandparents explicit rights to seek time with their grandchildren. However, neither the federal Divorce Act nor Ontario’s Children’s Law Reform Act does so, meaning that a grandparent in Ontario must rely on more general terms in the statutes that allow “persons other than a parent of the child” to apply to the court for what is called a contact order.
Of course, in most families – whether the parents remain together or have separated – grandparents spend time with their grandchildren with the blessing of the parents and with no need for a court order. Indeed, in many families, grandparents play important roles to support the parents, assisting with child care, transporting their grandchildren to and from activities and offering another perspective to the often challenging task of raising children.
However, from time to time, grandparents want time with their grandchildren that the parents do not want them to have, and then they have to go to court to try to get that time. These cases can be challenging, as Justice McVey notes in her decision:
“Grandparent cases are difficult. On the one hand, contact with extended family is generally in a child’s best interests. A loving relationship with a grandparent can undoubtedly enhance the emotional well-being of a child. On the other hand, parents have an inherent right to decide what relationships are beneficial to their children. There is no automatic right of access by third parties, including grandparents. Courts should defer to parental decision-making unless there is a basis to find that the parents are incapable of acting in their children’s best interests.”
Pavlakovic v Volpi is one of those difficult cases. The Pavlakovics are the maternal grandparents of three grandchildren between the ages of 10 and 15. For many years, they had played an important role in their grandchildren’s lives, providing care to the children when their parents were working or otherwise unavailable. The parents eventually cut this time off, and the grandparents brought a motion for an order granting them contact with their grandchildren.
In reaching her decision to deny the grandparents’ motion, Justice McVey analysed three questions:
- Does a positive grandparent-grandchild relationship already exist?
- Has the parents’ decision-making about the grandparents’ time with the grandchildren imperilled this positive relationship?
- Have the parents acted arbitrarily?
Had she answered yes to all three of these questions, the court would have intervened and conducted its own best interests analysis with respect to whether or not the children should continue to have contact with their grandparents.
With respect to the first question, Justice McVey – with the agreement of both parents and the grandparents – found that the children had had a positive and healthy relationship with their grandparents until 2018. The grandparents had provided care for the children, including sleepovers and regular visits with the whole family, on a regular basis.
“By all accounts, the family was very close and supported one another however needed. Though the [parents] dispute the precise extent of the assistance provided, they readily accept that the [grandparents] helped them extensively when the children were young, assistance for which they are very grateful.”
Justice McVey found that the answer to the second question was also yes: the parents first reduced and eventually terminated all contact and communication between their children and the grandparents, which “clearly ‘imperilled’ their relationship.”
However, she answered no to the final question, finding that the parents, in making their decision to terminate all contact between the children and their grandparents, had been motivated solely by the children’s best interests:
“The evidentiary record discloses two parents who tried for years to carve out space for a relationship between the children and the [grandparents], notwithstanding the [grandparents’] repeated failures to respect the boundaries the [parents] put in place.”
The trouble seemed to begin when the parents separated in 2017, because the mother had had an affair. While the parents’ separation was amicable, and they remained committed to a child-focused process with shared parenting time and decision-making, the grandparents did not react well to the separation. There were a number of troubling incidents, including one in which the grandmother called the mother a “whore” in front of one of the children. Nonetheless, the parents continued to try to facilitate the grandparents’ time with the children, with the father being the primary communicator.
However, the behaviour of the maternal grandparents became increasingly concerning. Among other things, the grandparents tried to turn the children against their paternal grandparents, even though they had previously had a positive relationship. Because of their concerns, the parents reduced the grandparents’ time with the children; following which, the Children’s Aid Society contacted them because of a complaint that could only have been made by the grandparents. When the CAS report was produced during the grandparents’ motion for contact with their grandchildren, it was revealed that the grandmother had made the complaint and had referred to the parents as “sociopaths.”
The grandparents coached one of the children to make a false report about the paternal grandfather and, when the father asked the grandfather not to give the children candy first thing in the morning, the grandfather challenged and ridiculed the father. Eventually, the parents became aware that the grandmother was secretly visiting one of the grandchildren during her playdates at a friend’s house. At one point, the grandparents sent the parents an email in which they referred to the grandchildren as “hostages” and accused the parents of “abducting” them. They threatened to report the father to his employer for threatening them with his work-issued firearm.
As Justice McVey writes:
“The [parents] terminated contact between the children and the [grandparents] only after the [parents] made consistent efforts to manage the [grandparents’] problematic behavior and the impact it was having on their children. The [grandparents] consistently ignored the boundaries established by the [parents.] . . . To sever contact with the [grandparents] in the above circumstances was the opposite of arbitrary. It was reasoned, incremental, and motivated by the emotional needs of their children. The [grandparents] had proven to the [parents] repeatedly that they could not be trusted and were unwilling to accept [their] parental autonomy.”
