With the upcoming holiday season, the focus turns to spending time with family, and with extended family. For those who are parents, this typically includes their child’s grandparents. That’s because when family members span generations, it offers a special source of enrichment to children, not just during holidays but throughout the year.
But some families, the relationship between parents and grandparents can be strained – or even severed entirely. Emotionally, this can be a difficult situation, but there is also a law-related aspect that is not often discussed: The question of whether grandparents have the legal right to have meaningful access to their grandchildren, when the parents have refused to allow it.
This Blog will cover some of the basics on that topic. (And note that it does not those rarer situations where a grandparent wants to take over decision-making responsibility for a child, in priority to a biological parent’s own rights).
The Legal Basis for the Right to Contact
It may come as a surprise, but in Canada grandparents do not have a legal right of access to their grandchildren. This was confirmed in a case called Chapman v. Chapman, where the court emphasized that the legal test is always what’s the child’s best interests.
With that said, the laws do recognize the importance of fostering familial relationships in a child’s life, including the ones with grandparents. In Ontario, the provincial Children’s Law Reform Act (CLRA) sets out the considerations for determining whether to formally give a grandparent such access rights, through what is known as a “contact order”.
Procedurally, section 21(2) of the CLRA says that any person – specifically including a grandparent – may apply to a court for a contact order with respect to the child. The burden lies on the grandparent making the application to prove it is in the child’s best interests to have contact with him or her. This is supported by evidence from the grandparent, in the form of an Affidavit that is filed with the court for its consideration.
The Tests for Granding a Contact Order to a Grandparent
Needless to say, the court’s decision comes only after a complex, multi-faceted analysis. In Ontario, it’s the grandparent making the application who must persuade the court that:
- They will have a positive impact on the child’s life; and
- Denying them access will result in significant harm to the child’s physical or emotional well-being.
To determine this, the court must consider several factors including:
- The nature and strength of the grandparent-grandchild relationship;
- The wishes and preferences of the child (assuming they are old enough to express their views);
- The ability of the grandparents to contribute positively to the child’s life.
But above all these factors – and the one that is paramount in any court decision involving a child – is the child’s own best interests. Under the CLRA primary consideration goes to the child’s physical, emotional, and psychological safety, security and well-being. Then comes a list of factors for the court to consider, including the child’s needs, strength of relationship with various family members, and own views and preferences. Cultural, religious and spiritual upbringing and heritage are considered, along with the presence or risk of family violence.
The list in the CLRA is not exhaustive, nor is it a checklist to be tabulated for the highest score. Instead, the court must look holistically at the overall situation. The court may also appoint a person with technical or professional skill to assess and report to the court on the needs of the child and the willingness of the grandparent to satisfy them.
The Influence of the Parent’s Wishes
As the discussion so far illustrates, there are many complex factors at play. But it can get even more tricky, since one added and unavoidable element in the court’s decision-making, is consideration for the parents’ own wishes.
Naturally, if a grandparent currently has no role in the child’s life, it’s usually because the parents feel strongly that the child would not benefit if they did. This leaves the court with the difficult task of deciding whether to override the parents’ own decision, and it requires a balancing of competing interests. Sometimes, the Ontario Family courts have adopted an additional three-part test:
- Does a positive grandparent-grandchild relationship already exist?
- Does the parent’s decision imperil this relationship?
- Has the parent acted arbitrarily?
Of course the outcome differs from case-to-case. If the parents are completely estranged from the grandparents, the court will generally respect the parents’ decision – but again this will be subject to the child’s best interests. If one parent has died and it’s their extended family making the application for a contact order, the court may also choose to override the living parent’s wishes, to avoid cutting the child off from the other side of the family.
The Content of the Contact Order
If the court decides that the grandparent is entitled to the contact order, it will usually impose terms and conditions around his or her access rights. For example, the court will stipulate how often and how long the grandparent and child may spend together, and on what schedule.
Importantly, the CLRA makes it clear that every grandparent who is successful in getting a contact order has a statutory obligation to act in the child’s best interests while exercising the access that has been granted. It must be enjoyed in a manner “that is consistent with the best interests of the child”, using the same tests that the court applies when deciding whether to make the contact order in the first place.
What if the Parents Do Not Cooperate?
Even in the face of a contact order made by a court, some parents may refuse to cooperate by making the child available. Under the CLRA the court can authorize the grandparent or someone on his or her behalf to apprehend the child, for the purpose of ensuring that their court-ordered rights to contact can be taken advantage of.
The Take-Away
This area of the law is complicated. If you’re a grandparent who wants to have access to a grandchild, or if you’re a parent who wants to prevent access by a grandparent to your child, be sure to contact an experienced Family Lawyer to get full details on your rights.
For the full text of the decision, see:
Chapman v. Chapman, 2001 CanLII 24015 (ON CA), 15 RFL (5th) 46 (Ont. C.A.)
