What are the rights of grandparents who want access to their grandchildren?

Bill 34, Children’s Law Reform Amendment Act (Relationship with Grandparents), received Royal Assent and came into effect in December 2016. This legislation makes changes to the CLRA provisions with respect to the rights of grandparents to custody and/or access of their grandchildren. In effect, it gives explicit legal rights to grandparents for the first time in Ontario, and brings this province’s legislation into line with legislation in Saskatchewan, Yukon, Manitoba, Quebec and Nova Scotia.

(The Divorce Act requires a grandparent wishing to pursue a custody or access claim to first obtain leave (section 16(3)), with the result that most grandparents turn to provincial legislation to make these claims.)

The Bill was introduced by NDP MPP Michael Mantha, after several previous unsuccessful private members’ bills. It is a response to a very vocal lobby by grandparents who feel they have been unfairly shut out of the lives of their grandchildren. In their lobbying, they have made the claim that more than 75,000 grandparents in Ontario are denied time with their grandchildren.

The changes to the CLRA are as follows (with changes noted in boldface):

Section 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.

Section 24 (the best interests of the child test:

24(2) The court shall consider all the child’s needs and circumstances, including:

(a)  The love, affection and emotional ties between the child and,

(i)  Each person, including a parent or grandparent, entitled to or claiming custody of or access to the child

The movement to entrench grandparent rights in law in Ontario

There are three primary contexts in which the issue of grandparents’ access to their grandchildren may arise:

  • When the parents of the children live together and do not want a grandparent to have contact with the children
  • When the parents of the children have separated and one parent, usually the custodial parent, does not want the grandparents to have contact with the children
  • When the grandparents have been the primary caregiver to the children for a period of time but now the children have returned to their parent(s)

Grandparents can play an important role in the lives of their grandchildren. They may assist with babysitting or child care on a regular basis or may have a frequent presence in the grandchildren’s lives in some other way (for example, regularly taking the grandchildren to the movies or the library, art gallery or museum, taking a grandchild to and from extra-curricular activities, taking grandchildren on trips or vacations, etc.)

Where the grandparents live some distance from the grandchildren, they may spend longer periods of time with them, but do so less frequently.

Grandparents can provide a link to family and cultural history and traditions and are sometimes able to negotiate disputes between the parents and their children.

Grandparents may also assist their grandchildren financially, by paying for activities such as camp or lessons that the parents cannot afford, helping out with expenses like orthodontal work or contributing to a RESP for the grandchildren’s future education.

Many parents turn to their parents for advice and support when they are uncertain about how to handle a situation with their children. (Of course, there are some grandparents who offer this advice even when it has not been solicited, in which case it may not be welcome or helpful!)

How the role of the grandparent develops is a function of many factors including the relationship between the grandparent and their child (the parent of the grandchildren) and child’s partner if there is one, geographic proximity (or not), cultural traditions, the physical capacity of the grandparent, the level of interest of the grandparent (many grandparents do not want to play a regular, active role in the lives of their grandchildren, feeling that they have already raised their family and are now ready to move on to lives free from children), the financial means of both the grandparents and the grandchildren’s family and so on.

Canadian research has found that about half of all Canadians who have living grandparents see them at least once a month. Most people reported feeling closest to their maternal grandmother, with the paternal grandmother ranking second. Grandchildren appreciate their grandparents’ knowledge of family history and for their help in understanding their parents.

Most often, the way a grandparent’s relationship with her/his grandchildren unfolds is informal and, as long as everyone is happy with the arrangement, there is no need for anything more. However, when a conflict arises, the grandparents may suddenly find themselves shoved aside, and this is when they may turn to the law for assistance.

Until the very recent changes to the CLRA, grandparents in this situation found themselves at a legal dead end, because the law in Ontario has virtually nothing to say about the access of grandparents to their grandchildren.

While courts have recognized the importance and value in children having relationships with their extended family, this does not extend to granting legal rights to those extended family members.

In order for a grandparent to be successful in an application for access, the grandparent has had to establish a very strong case for why this is in the best interests of the child. The court would consider such factors as:

  • The closeness of the relationship between the child and the grandparent(s),
  • The views and wishes of the child;
  • Other factors in the best interests of the child test set out at section 24 of the legislation, as they apply to the children in each particular case;
  • Whether access is being arbitrarily or unreasonably withheld;
  • The parents’ wishes, which will be given considerable deference.

Where there has not been a close and meaningful relationship between the grandchildren and the grandparents and the access is disputed by the children’s parents, it is extremely unlikely the grandparents will be successful.

One of the most important Ontario cases that deals with grandparent access while the parents of the children are living together is Chapman v Chapman (28 March 2000) Ontario 1131/98 (Ont. SCJ) (unreported), in which the paternal grandmother turned to the courts in an attempt to get time with her grandchildren.

In this case, there was a very acrimonious relationship between the grandmother and her daughter-in-law that both parents felt would have a negative impact on the children should they spend time with their grandmother. Justice Abella of the Court of Appeal, as she then was, wrote in her decision for the court:

These are loving, devoted parents committed to their children’s welfare. In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often and under what circumstances. . . the right to decide the extent and nature of the contact is not [the grandmother’s] and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. . . . there is no evidence that this parental decision is currently detrimental to the children.

This case, which found that the parents were the ones to decide on what if any access the grandmother should have, remains the standard in Ontario. It also provides authority foe the court to intervene in situations where there is a positive relationship between children and their grandparents that is being threatened:

A relationship with a grandparent can – and ideally should – enhance the emotional well- being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship.

When grandparents have served as the custodial parent to a child for a period of time, they may be in a position to argue that to disrupt this relationship would not be in the best interests of the child. For instance, grandparents who have cared for a child because the parent was incapacitated due to illness, addiction or incarceration, and the parent is now ready and able to resume parenting may be successful in obtaining an order that provides them with an ongoing role in the grandchild’s life, should the returning parent attempt to deny such contact.

This is consistent with the criteria set out above; in particular the criterion that there be an existing and substantial relationship between the grandparent and the child.

When parents separate

When the parents have separated, sorting out access by grandparents may be more challenging.

Most often, the courts take the position that grandparents enjoy time with their grandchildren through their own child. In other words, the maternal grandparents see their grandchildren when they are with their mother; the paternal grandparents, when the children are with their father.

Difficulties with this can arise when one parent does not have access, or only has limited access under formal supervision as may be the case where there has been abuse. How, then, can a grandparent expect to see their grandchildren?

Courts tend to respect the autonomy of the custodial parent in these situations, whether or not the court perceives the decision of the parent as the “right” decision. Parents are generally presumed to act in the best interests of their children when there is acrimony between the grandparents and the parent.

Where the grandparents have a hostile or negative attitude towards the custodial parent, courts are reluctant to require that parent to permit access out of concern for the impact on the children of this acrimony.  As the judge in one case said:

Acrimony between a custodial parent and someone seeking access to the child is a factor to consider when looking at the child’s best interests. . . . The more distant the connection between the child and the person seeking access, the more importance I would accord to hostility between the parties as a factor in deciding whether access is in the child’s best interests. (G. (M.L.) v G. (K.L.) (1993) 49 R.F.L. (3d) 437 (B.C.C.A.)

A 3-part test was established by the court in 2005 in the case Giansante v DiChiara, which remains the standard today:

  • Does a positive grandparent-grandchild relationship already exist?
  • Has the parent’s decision imperilled that positive relationship?
  • Has the parent acted arbitrarily?

In the case Barber v Mangel, 2009 CarswellOnt 8706 78 R.F.L. (6th) 234 (Ont. C.J.), Justice Brownstone stated, in answering the first of these questions:

In answering the first question, the case law clearly establishes that a “positive” grandparent-and-grandchild relationship means something more than an occasional pleasant experience for the child. In order to displace the principle of parental autonomy, the grandparent-and-grandchild relationship must consist of a close bond with strong emotional ties deserving of preservation. In the majority of cases in which the court imposed an access order in favour of a grandparent against an unwilling parent, the child had either lived with or spent significant time with the grandparent over the significant period prior to the litigation.

Other decisions have noted that when a grandparent is seeking access, it is up to the grandparent to demonstrate that this is in the child’s best interest, that courts should be reluctant to interfere with a custodial parent’s decision and should do so only if it is necessary to protect the child’s best interests and that it is not in the best interests of a child to be placed into circumstances of extreme conflict between the custodial parent and a non-parent.

This issue of grandparent rights has also been the subject of academic review. Martha Schaffer, of the University of Toronto Faculty of Law, published a paper in 2004 called “To Grandmother’s House We Go: An Examination of Grandparent Access”.

She describes two approaches to grandparent access claims:

  • parental autonomy, in which courts start from the assumption that it is generally in the children’s best interest to respect parental decision making
  • pro-contact, in which courts start from the assumption that contact between grandparents and grandchildren is generally in the children’s best interests.

Schaffer argues that courts by and large prefer the pro-contact model, which would seem to be reflected in the recent legislative changes, entrenching explicit legal rights for grandparents with respect to access to their grandchildren.

Greenan v Johns (2015, OCJ) was decided following a 33-day trial. The court ordered unsupervised access for the paternal grandparents, noting that there was no evidence that the mental health issues of the grandmother that had led to an earlier supervised access remained a concern. In this case, the Office of the Children’s Lawyer supported unsupervised access by the grandparents, and there was an established and positive relationship between the grandparents and the grandchildren.

Also decided in 2015, Nichols v Herdman dismissed a motion for access by the maternal grandparents. Justice Stevenson found that there was an existing positive relationship between the grandparents and the grandchildren and that the parents’ decision to limit contact would imperil that relationship (the first two questions set out above), but then found, in response to the third question that the parent were not acting arbitrarily or contrary to the child’s best interests. He felt that the grandparents were attempting to control the situation and placing their own needs above those of the child and her bond with her parents.

It is not unheard of for an abusive man to encourage his parents to seek access to the children in order to increase his access to the children, particularly if he has no access or it is limited or supervised. His parents could be complicit in his efforts to undermine the mother or could themselves be pawns of the abuser, not realizing why he is encouraging them to seek access.

In this situation, the mother may want to limit access by the paternal grandparents, even if the children have a good relationship with them.

Despite the tendency of courts to respect the wishes of the custodial parent, if the court does not fully understand the reality of the violence perpetrated by the abuser, it may see the mother’s refusal to allow access by the paternal grandparents as vindictive or not in the best interests of the children.

If you are supporting a woman whose abusive partner’s parents are seeking access, you can:

  • Make her aware that the grandparents do not have legally entrenched rights
  • Let her know that courts tend to respect the wishes of the custodial parent
  • Assist her in finding a lawyer to provide her with legal advice
  • Support her in gathering evidence about why access by the grandparents would not be in the best interests of the children. This should include evidence about:
    • The history of abuse and the woman’s concerns about ongoing abuse and the impact on the children
    • The reasons why the father’s access is limited or non-existent
    • Concerns about how access by the grandparents might provide a back door for the father to have contact with the children beyond that permitted in the original custody and access order
    • Any problematic instances between the grandparents and the children or between the father and the children while the children were in the care of the grandparents

It will be interesting to see the impact of the amendments to the CLRA, as cases perhaps begin to move through the courts. However, there is no doubt that these stories have unhappy endings no matter the outcomes when grandparents and parent use litigation to sort out who can see the children/grandchildren. In most situations, finding non-litigation means to resolve these conflicts will better reflect the best interests of the children, but also of the family as a whole.

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