January 15th 2024
When it comes to grandchildren, a legal separation between parents may create uncertainty for grandparents. For instance, what role can grandparents play in having continued access to the child? Although grandparents do not have an automatic legal right to ongoing access to grandchildren or decision-making responsibilities, it may be in the best interests of grandchildren to have continued involvement by their grandparents. Under section 21(2) of the Children’s Law Reform Act (the “CLRA”), a grandparent may apply to the court for a parenting order that will allow them decision-making responsibilities. Under section 21(3) of the CLRA, they may also seek ongoing contact with their grandchild. Each child’s situation is different and will involve unique factors to consider, so legal advice on whether an application should be brought in any situation is highly recommended.
When making an application to the court for access to a grandchild, the burden lies on the grandparent to prove the order will be in the best interests of the child. Often, this application results from a parent(s) decision to limit or cease contact with the child. In some situations, parents have both decided to limit a child’s contact with their grandparents, leaving the court with the difficult task of whether to override the parents’ own decisions. In these situations, the Ontario family courts have adopted a three-part test. First, they ask whether a positive relationship between the grandparent and grandchild already exists. Second, they consider whether the parents’ decision imperils this relationship. Last, they will question whether the parents have made the decision to remove access by grandparents arbitrarily. Let us consider this test in the context of real cases below.
In the 2001 case of Chapman v Chapman (https://canlii.ca/t/1fbp4), the parental grandmother made an application to the court for an order after access to her grandchild was refused by the parents. In this case, the court found no evidence to suggest the parents were behaving in a way that did not align with the best interests of their children. In siding with the parents, the Court of Appeal stated that their decision does not mean the grandmother will have no access, but it does mean “the nature and frequency of the access will be at the discretion of the parents who, it is assumed, will make that determination based on the best interests of the children.” From the court’s perspective, respecting the parent’s boundaries for access did not imperil the relationship between the grandparent and the child.
The result in Chapman demonstrates that the Court tends to respect the decisions of parents, provided they are acting in the best interests of their children. However, there are unique situations where the Court must consider the role of a grandparent that can lead to awarding access despite the parent’s own decision to restrict it. In the 2023 case of M.M. v. K.M. (https://canlii.ca/t/jz8qt), the court heard from a maternal grandmother who was seeking a contact order for her three (3) year old granddaughter. In this case, the mother passed away due to cancer, and the father moved to Singapore and began to cut off contact between the child and the maternal grandmother. By extension, the child’s extended family from her mother’s side was losing their relationship with the child because of the father’s actions. Considering the mother’s untimely death, the Court reasoned that ongoing contact with this side of the family should be maintained, including a return to in-person and overnight visits with them, despite the father’s decision to move abroad. The Court reasoned that the child “has much to benefit from having meaningful contact with the applicants. I am not satisfied that she will ever have the opportunity for these benefits if a contact order is not made.” Ultimately, the benefits of this meaningful relationship outweighed the father’s desire to remove himself from communication with his late partner’s family. The child’s best interest included the ability for her extended family to provide an emotional connection with her late mother, their family roots, history, and culture.
As this article has explored, the outcome of an application brought by a grandparent for access or decision-making depends on the circumstances surrounding the child’s best interests. If you are a grandparent who has been affected by restricted access to a grandchild, consider speaking to a trusted legal professional, and do not hesitate to reach out to Liddiard Law for a consultation.
Law Clerk for Liddiard Law Professional Corporation
Michael Craig Liddiard, BA MA JD