It is a given that when couples separate and children are involved, access always becomes a topic of discussion between the former spouses.
However, what no one ever really talks about is what right grandparents may have to continue to see their grandchildren following a separation or divorce. The reality is that grandparents may sometimes lose out on the opportunity to see their grandchildren or spend time with them when there is a breakdown in the marriage of the parents. This is particularly true where there is a strained relationship between the parents and grandparents.
This raises many questions. Can parents just cut off the grandparents and alienate them? Can grandparents get access to the children in some other way? What are the rights of grandparents?
Do Grandparents have a right to see their grandchildren?
Up until recently, rights of grandparents in Ontario were unclear. Provincial legislation never clearly stated what rights grandparents had in terms of access to their grandchildren, regardless of what the marriage status of the parents was.
In 2016, Bill 34 was introduced and amended the existing Children’s Law Reform Act (CLRA). That CLRA requires family courts to consider the best interests of a child where decisions involving children had to be made. Section 21 of the CLRA specifically outlines who can apply to court for custody of or access to a child. As a result of the new amendments, this list now specifically includes grandparents.
When considering the best interests of the child, and whether to grant custody and access to the individual(s) petitioning for it, courts must consider the specific circumstances of each case, using the factors set out in s. 24(2) of the CLRA. This section requires the court to “consider all of the child’s needs and circumstances” in determining what will be in their best interest. Under Bill 34 the court must now consider the relationship between the child and each parent and the child and the grandparents. Other factors that will be considered are:
- The bonds of affection between the child and the grandparent and also the child’s bonds with other family members;
- The child’s preference, when it can be determined;
- How long the child has lived in a stable environment;
- Whether the person seeking access is willing and able to meet the child’s needs;
- The plan proposed by the person wanting access or custody; and
- The ability of the person wanting access or custody to act as a parent.
Advocacy groups estimate that approximately 75,000 grandparents in Ontario alone are estranged from their grandchildren. This change in legislation was considered a major step forward for those who have previously been alienated or denied access to their grandchildren.
Things to Keep in Mind
Even though grandparents now have this option to request custody and access from the courts, there is no guarantee that it will automatically be awarded to them. Bill 34 simply obligates the court to consider grandparents in its overall assessment of what will be in the best interests of the child.
While these new changes to the legislation have been made, a 2001 decision by the Ontario Court of Appeal is the current state of the law in Ontario. In that case, the court held that if a parent is attentive to the children’s needs and best interests, and there has been no evidence that the denial or refusal to allow access is detrimental to the children, the court should defer to a parent’s right to make decisions for the child, including when and if the grandparents can see the children. This has been described as the parental autonomy approach, which allows for parents to make decisions for the children without the court’s interference.
Another decision in 2004 interpreted the decision in 2001 as requiring the decision to cut off the grandparents to be “reasonable” before a court will accept that the parents know best. Therefore, the courts will have to look at each case and look at the facts surrounding the decision to cut off the grandparents, as well as whether the parents are attentive and take the best interests of the children into consideration when making their decision.
When Will the Court Grant Access to Grandparents?
The courts will analyze cases involving grandparents and allow access in some situations. These include:
- If one of the parents has died and the grandparents were the parents of the deceased;
- There is an established and existing relationship between the grandparents and children, and it is at risk of being interrupted; and
- The grandparents provide some consistency to the children that the parents cannot deliver.
In situations where the courts deny access to grandparents, it is normally because of some disruption to the children’s lives or some negative effect on the parent-child relationship. The court will deny access if:
- The grandparents are seeking to take over the parent’s role;
- The grandparents are involved in some sort of misconduct;
- Granting access to the grandparents will result in either destabilizing the parent-child family unit or putting the child in the middle of a conflict that exists between the parents and grandparents.
Now that the legislation expressly includes grandparents in the conversation, it does not mean that access will be granted in every case. Parents have autonomy over the decision-making for their children, and the court does not like to interfere in the home if they do not have to.
Child custody and access are not always just the concern of parents. In many separations or divorces, grandparents become alienated and are not able to see their grandchildren or have the chance to continue to be involved in their lives. If you are a grandparent seeking access to your grandchildren, the experienced and compassionate team of family lawyers at Borden Family Law can help. We regularly assist clients with navigating the sensitive nature of gaining access to grandchildren. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.