Many grandparents have, or want to have, a close relationship with their grandchildren. There is social science research that says children benefit from knowing their heritage through contact with their ancestors. Many family court judges will tell you that children also benefit from having more family members involved in their lives and caring for them. Unfortunately, grandparents are not always able to stay involved in their grandchildren’s lives. Sometimes that is because the children’s parents have “cut them out” or blocked grandparents from seeing their grandchildren. When that happens, grandparents want to know if they have any legal rights.
However, in Ontario Family Law, there are no rights for adults. The rights belong to the children. What matters is what is in the children’s best interests. All the factors above are reasons why it may be best for the children to have a relationship with their grandparents, even if a court order is required.
Section 21 of Ontario’s Children’s Law Reform Act, allows more than just children’s parents to start court proceedings in relation to child custody or access. That law allows parents or “any other person” to make those claims. So, grandparents can bring a custody or access application in Family Court with respect to their grandchildren. That case is determined in the same way as any other custody case, based on what is in the “children’s best interest.” Among the factors that favour making an access order in favour of grandparents are:
- the love, affection and emotional ties between the child and the person seeking access;
- the ability of the person applying for access to the child to act as a parent; and
- the relationship by blood between the child and each person who is a party in the case.
However, the courts have noticed that when grandparents come before the court looking for access, it is because the children’s parents, or at least a custodial parent, have decided that contact between the children and grandparents is not in the children’s best interest. Where the parents are competent parents, courts do not like to intervene in their decisions. Judges assume that parents who deny access to grandparents do so out of concern for their children’s best interests, and such considerations as:
- the love, affection and emotion ties between the child and the other people with whom the child lives and the people who are actively involved in the child’s upbringing;
- the stability of the home environment (and avoiding disrupting a stable home environment);
- the ability of the custodial parents to provide the child with guidance and support; and
- the ability of the custodial parents to make good parenting decisions.
In the case of Chapman v. Chapman, the Ontario Court of Appeal said that the courts should respect the autonomy of the parents and their decision about what is in their children’s best interests. However, that does not mean that the courts should never intervene when parents deny their children the opportunity to have a relationship with their grandparents. In that case, the court of appeal said:
- 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 imperilled 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
So, in Chapman, the Ontario Court of Appeal set out three factors that judges must consider when deciding cases in which grandparents seek access orders:
- Does a positive grandparent-grandchild relationship already exist?
- Has the parent’s decision imperilled the positive grandparent-grandchild relationship?
- Has the parent acted arbitrarily?
Where there is no existing positive grandparent-grandchild relationship, and it is not necessary for the court to intervene to protect the child from harm under the Child and Family Services Act, the court will not make an order to create a positive relationship. Put more simply, a grandparent must have already had a positive relationship with the kids to bring an application for access. If no such positive relationship existed, the grandparents will not get an order for access.
Also, to be successful, grandparents must show that the parents acted “arbitrarily”, which means the parents made their decision to “cut out” the grandparents based on considerations other than the children’s best interests. The court will respect the decisions of parents that are based on their beliefs about what is in the children’s best interests.
Things are entirely different when the parents are before the court because a Children’s Aid Society has had to intervene to protect the children. In that case, section 51(3.1) of the Child and Family Services Act requires a judge to consider placing a child with extended family members before placing the child in foster care. The legislated assumption is that placing with a family member is far better for the child. There are several steps that grandparents can, and should, take to make sure their grandchild lives with them and is not in CAS care.
There is a flip-side to having a court order for access to a child. Access orders are usually made in favour of parents. Grandparents and other “non-parents” who get access orders to a child often put them selves in “the place of a parent” to that child. Under Ontario Law everyone who stands in the place a parent must pay child support. So, grandparents can be forced to pay child support - even if other “parents” are already paying child support. For more information about how that can happen, listen to this podcast.
Grandparent access cases, or even grandparent custody cases, are very complicated family court matters. In addition, sections 21.1 and 21.2 of the Children’s Law Reform Act create a number of additional requirements and procedures for non-parents who go to family court for custody or access orders. Grandparents who are having trouble seeing their kids should go to see an excellent family lawyer with experience in grandparent-access cases. To make an appointment to consult with Certified Specialist in Family Law, John Schuman, call 416-446-5847, email him, or fill out the form below. We answer all inquiries promptly.
To learn even more about the rights of grandparents, and parents, in custody and access cases, how those cases work, how family court cases and options for resolving these difficult cases outside of family court, get a copy of this as a or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or in the paperback version.
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