Court Cases & Orders

You Be the Judge (Part 2): Should Grandmother Be Included in Kid’s Custody Award?

granmother 2

You Be the Judge (Part 2): Should Grandmother Be Included in Kid’s Custody Award?

In our recent blog, we asked our readers to consider how they themselves would rule in light of the facts in a recent case called McGlade v Henry. It featured two young parents whose 4-year old child received an exceptional level of care, financial support, and emotional guidance from his grandmother on the father’s side. The grandmother had teamed up with the child’s father to ask the court for three-way joint custody (i.e. mother, father and grandmother); however, the mother resisted and asked the court to grant her sole custody instead.

We asked the following question for readers to consider: Should the court, in the context of deciding which of the parents should have custody, take into account the grandmother’s role, extensive involvement, and influence? Should the grandmother be included in the court’s custody award if one or both parents object?

The court’s judgment began with a review of all the facts, including a detailed examination of the parties’ current and historical interactions and interrelationship with each other, and with the child. Under the relevant family legislation, the court pointed out, it had to consider the boy’s needs and circumstances, including the love, affection and emotional ties between the child and anyone else who might claim custody or access – which in this case would include the grandmother. The legislation also required the court to consider her ability and willingness to act as “parent”, and to provide the boy with guidance, education, and the necessaries of life.

The court also underlined the fact that legally – and perhaps surprisingly – biological parents are not necessarily given preference in terms of getting custody of their own child. Rather, the child’s best interests must govern at all times; the fact that an applicant for custody happens to be a biological parent is only one of many relevant factors. As the court put it:

Accordingly, [the mother] and/or [the father] do not have general preferential custodial status over [the grandmother] simply because they are the biological parents of [the boy], but the difference in their blood relationships with [the boy] will be one of the factors considered by the court in determining [his] best interests. Nevertheless, [the mother’s] claim for sole custody will be given serious consideration because she is a biological parent of [the boy], and [the father’s] claim for joint custody will be given serious consideration for the same reason.

The law also indicates that grandparents should not be given preference in relation to custody solely because they are more mature, have more parenting experience, and have access to greater material resources than biological parents, because, otherwise, grandparents would often be in a favoured position compared to adequate biological parents, and the closer blood relationship between adequate natural parents and their children would, in many cases, be susceptible to being outweighed by those considerations …

The court added:

None of these imperatives imply, however, that [the grandmother’s] claim for joint custody should not be given serious consideration. In fact, in all of the circumstances of this case, her claim also deserves serious consideration.

With that said, the grandmother’s extraordinary level of involvement, and the fact that she had been “remarkably financially generous” to the boy and the mother, had what the court considered to be somewhat of a down-side. As the court explained:

Further, there is uncontradicted evidence that she overindulgently gives [the boy] anything he wants and, as a result, he has been prone to behavioural acting out when he does not get what he wants.

Additionally, although she is always glad to have [the boy] spend time with her when his mother or father are not available, the evidence indicates that she may have, intentionally or unintentionally, disempowered them, at least to some extent, by taking a controlling and directive approach in relation to [the boy] and using her superior resources to do so.

The court does not doubt that she has [the boy’s] best interests at heart, but she might, intentionally or unintentionally, not be advancing those best interests at all times.

After taking everything into account, the court summarized the key factors. From the boy’s perspective, it was very important that he have continued and significant contact with all three parties; they each had what the court called “a very strong love” for him. Depriving him of that exposure would be emotionally disruptive and harmful.

From the mother’s perspective, there was an evident adverse effect to the grandmother’s extreme financial generosity and support: it diminished her own role and authority as the boy’s parent. The grandmother had implicitly – though likely unwittingly – undermined the mother over the years.

As for the father, the court concluded that he was clearly devoted to the boy as well, but was the least involved amongst the three caregivers. More importantly, he still lacked the maturity needed to be an effective parent and key decision-maker for the boy.

In the end, the court found that joint custody shared by all three parties was not in the boy’s best interests – though not because of the grandmother’s heavy-handed involvement. Rather, to recognize both women’s contributions (both past and future), it “parcelled out” certain aspects of the boy’s care and upbringing to the mother and grandmother, while relegating the father to a more secondary role overall.

Specifically, the mother was to provide the boy’s primary residence and was given sole custody in relation to his hygiene and health, and his religious upbringing and welfare. However major decisions on education were to be made jointly by the mother and grandmother. The court summed up its ruling this way:

In summary, the court finds that it is in [the boy’s] best interests to strengthen [the mother’s] maternal role, while maintaining [the grandmother’s] vital role in relation to his education, and encouraging all three parties to continue to nurture their critically important emotional ties with [the boy].

To our readers: Is this the way you would have settled this dispute? What are your thoughts on this outcome?

For the full text of the decision, see:

McGlade v Henry, 2015 ONSC 3036 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.