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

mother holding daughter who looks content

UPDATED June 2021: Grandparents in Ontario have some legal rights to go to court if they want to spend time with their grandchildren.

The laws

Both the Children’s Law Reform Act and the Divorce Act include a provision for “contact orders,” which give non-parents – most often grandparents, but it could be other family members or friends as well – time with children. In some situations, especially if the grandparent has played a significant role in the grandchildren’s lives (if, for example, the parent(s) has/have been ill, incarcerated or otherwise unable to care for their children), they may be able to apply for a parenting order.

The Children’s Law Reform Act contains the following provisions that apply to grandparents:

Section 21(2): Any person other than the parent of a child, including a grandparent, may apply to a court for a parenting order respecting decision-making responsibility with respect to the child.

(3) Any person other than the parent of a child, including a grandparent, may apply to a court for a contact order with respect to the child.

Section 24(1): In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section

(2): In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 16.5 of the Divorce Act allows “a person other than a spouse,” which would include a grandparent, to seek a contact order for time, in person or otherwise, with grandchildren. Unlike the CLRA, a grandparent using the Divorce Act to apply for a contact order must first seek leave of the court to make that application, so the process is a little more complicated.

The role of grandparents

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.

When grandparent contact can become a problem

There are three primary contexts in which the issue of grandparents’ contact with 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 parent with primary decision-making responsibility, 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)

In order for a grandparent to be successful in an application for contact, the grandparent has to establish a 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 contact 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.

Grandparent contact when the parents live together

One of the most important Ontario cases that deals with grandparent contact 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 contact the grandmother should have, remains the standard in Ontario. It also provides authority for 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.

Grandparent contact when the grandparent has acted as the parent

When grandparents have served as the primary 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.

Grandparent contact when the parents have separated

When the parents have separated, sorting out contact with 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 contact, or only has limited contact 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 primary 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 primary parent, courts are reluctant to require that parent to permit contact 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 three-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 contact, 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 primary 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 primary decision-making parent and a non-parent.

Greenan v Johns (2015, OCJ) was decided following a 33-day trial. The court ordered unsupervised contact 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 contact remained a concern. In this case, the Office of the Children’s Lawyer supported unsupervised contact for 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 contact 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 parents 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.

Where there is family violence

It is not unheard of for an abusive man to encourage his parents to seek contact with the children in order to increase his time with the children, particularly if he has no parenting time 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 contact.

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

Despite the tendency of courts to respect the wishes of the primary decision-making 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 contact with 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 contact, you can:

  • Let her know that courts tend to respect the wishes of the primary parent
  • Assist her in finding a lawyer to provide her with legal advice
  • Support her in gathering evidence about why granting a contact order to 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 parenting time is limited or non-existent
    • Concerns about how contact with the grandparents might provide a back door for the father to have time with the children beyond that permitted in the original parenting 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
    • Any history of violent, abusive, threatening, harassing, coercive, or controlling behaviour by one or both of the grandparents towards any child, pet, family member, or romantic partner