Grandparents and other extended family members can play a critical role in a child’s upbringing. However, a grandparent’s access to their grandchild may be constrained by family conflict.
Grandparents do not have an automatic right to have access to their grandchildren. However, Canadian courts have acknowledged that it can be in a child’s best interests of a child to have contact with their grandparents, depending on the nature and history of their relationship.
Do the best interests of the child include relationships with grandparents?
The first case in Ontario to deal with the issue of grandparent access was Chapman v. Chapman. In Chapman, the paternal grandmother applied for monthly access and weekly telephone calls with her grandchildren. Given the strained relationship between the parents and the grandmother, an interim order for unsupervised access stated that the parents could only be present during the visits with the grandmother’s consent.
At the trial stemming from the same matter in March 2000, the grandmother “asserted that it was in the best interests of children generally to have access to members of their extended family.” In a subsequent report, it was acknowledged that “this is a well-functioning, child-centred family.”
The same report noted the children disliked their grandmother but concluded that they might benefit from more time with her. The trial judge ordered at least six visits per year, for at least 44 hours. The visits were to be facilitated with the assistance of the children’s uncle, as the grandmother acknowledged needing help to care for the children on her own.
How does a grandparent or other “non-parent” apply for access to a child?
The grandmother in Chapman applied for access to her grandchildren under Ontario’s Children’s Law Reform Act. Section 21 of the Act reads:
Parenting order, application by non-parent
(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.
When an application is brought under these provisions, the court must make a decision based on the “best interests” of the child. There is a myriad of factors considered in determining the best interests of the child, including emotional ties, living arrangements, the length of time the child has been in a stable home environment, and relationships by blood or adoption.
Non-parents cannot impose their perception of what’s in a child’s best interests
In Chapman, the children were forced to travel long distances to see their grandmother. As they did not have a positive relationship with their grandmother at the time, the Court of Appeal found that visiting their grandmother was more disruptive to their interests as it was not enhancing their emotional well-being. The grandmother’s insistence on visits occurring only on her terms further frustrated her claim. The Court noted that:
“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 they see them.”
The Court understood that the grandmother wanted to maintain contact with her grandchildren but held that “neither she nor a court should be permitted to impose their perception of the children’s best interests in the circumstances such as these where the parents are so demonstrably attentive to the needs of their children.” In the absence of evidence that not visiting their grandparents was not detrimental to the children, the court set aside the trial judge’s decision.
The legal test for grandparent access applications
What about situations where the children have a positive relationship with their grandparent? In those instances, the court must undergo an analysis of the principles laid out in Chapman. These principles were summarized by the Ontario Superior Court in the form of a test in Giansante v. Di Chiara.
In general, courts must defer to parental authority unless the answer to the following is “yes”:
- Does a positive grandparent-grandchild relationship already exist?
- Has the parent’s decision imperiled the positive relationship?
- Has the parent acted arbitrarily?
For the purposes of this assessment, a “positive relationship” is one that involves strong loving and nurturing ties demonstrated in the time the grandparent and child spend together. The relationship must be one that is worth preserving because it is constructive for the child, with consideration of the child’s age and the time the child was last in contact with the relative.
As discussed in Chapman, in addition to these questions, a court must still undergo the best interests of the child analysis as required by the Children’s Law Reform Act.
Less deference given to parental authority when one parent has passed on
If a parent has passed on, the considerations change slightly in light of the different family circumstances. When one parent has passed away, parental authority is given less deference. This is because the child risks losing a relationship with the other side of their family should the authority of the living parent be the only one taken into account.
Contact GDH Family Law in Vaughan for Trusted Advice on Grandparent and Family Member Access
At GDH Family Law, we meet the needs of modern-day families with our contemporary approach to the practice of family law. We provide tailored legal solutions and reliable advice on disputes involving parenting time or extended family member access issues.
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