In a recent Blog we discussed the Ontario law around access to children by grandparents. Although a grandparent has no automatic legal right to spend time or be in contact with a grandchild, they may apply to the court for an order granting them such access (on specified terms), for example in cases where the child’s own parents have deliberately curtailed it or are otherwise estranged.
The recent decision in M.M. v. K.M. illustrates how these kinds of court applications work.
In that case, the child was three years old, and her mother had died of cancer the year before. The father was distraught, and had allowed the child to live with the maternal grandmother for a time while he worked on improving his emotional state. However there was a great deal of extended-family friction in general, and he mistrusted the grandmother and her other children (i.e. the maternal aunts and uncles).
Ultimately, the father moved to Singapore with the child, at least for the short-term. The father refused to give the grandmother anything more than weekly video calls with the child, through FaceTime or Skype. He also monitored the calls and curtailed the topics that could be discussed; most particularly he forbade any discussion of the grandmother’s extended family, who were Albanian.
The grandmother went to court and obtained what is known as a “contact order”, that temporarily forced the father to facilitate and continue those weekly calls. She later applied to make that contact order permanent, and also wanted to add a term granting her the right to have regular in-person contact with the child, in the event the father moved back to Ontario with her.
Against this context, the court considered and applied the many legal principles that guide these kinds of cases. It summarized some of them this way:
- The wishes of the parents do not take automatic preference, but are only one factor to be considered.
- The best interests of the child of the child always govern, in keeping with the requirements under section 24 of the Children’s Law Reform Act.
- That said, the parents’ wishes are usually respected unless the court sees a willful disregard of the child’s best interests. The parents’ decision must also be reasonable.
- Less deference to those wishes may be owed where – as in this case – one of one of the parents has died, meaning that the child may lose a relationship with the other side of the family.
It was up to the grandmother to establish that the father’s decisions should not be given deference and that a contact order was in the child’s best interests.
Next, the court looked at the facts. It started by considering whether there was already a positive relationship between the grandmother and the child.
In this case the child had only brief and highly-restricted video calls for more than a year, and no in-person contact at all during that time. There was real conflict in the extended family, and the relationship between family members was very strained. However, even though the child might be exposed to potential acrimony, the benefits of a meaningful relationship – especially in light of the mother’s death – outweighed the risk.
The next question was whether the child’s father had made decisions that imperilled the relationship between the child and the grandmother.
The answer was clearly “Yes”. After the mother’s death from cancer, the father had become the sole parent of a three-year old child. He had deliberately limited the grandmother’s role over time: Initially she had provided primary care for her while the mother was sick, but this had now been reduced to only once-weekly video calls. The father had also acted arbitrarily, the court found, since he kept reducing her contact and at one point had cut it off entirely for more than 6 months.
In the end, the court ruled that the child had a great deal to benefit from having meaningful regular contact with the grandmother. She offered exposure to her loving and close-knit extended family members, who had previously played an important role in the child’s early life. This was especially important since the child had lost her mother at a very young age. As the court put it, the grandmother and her other adult children were “able to offer [the child] the only connection she will have with her mother.” They would also provide “an emotional connection to her mother … [and] a connection to her roots and history, and her Albanian culture that is reflected in the maternal side of the family.”
The court granted the permanent contact order in the grandmother’s favour. The weekly video FaceTime and Skype calls with the child would continue for 8 weeks, and then be increased to bi-weekly calls. They were not to be supervised by the father or anyone else. The child and her grandmother were also allowed to contact each other at other times, including special occasions, as agreed between her and the father. He would be responsible for facilitating their arrangements.
Finally, the contact order stipulated that if the father and child ever moved back to Ontario from Singapore, the grandmother would be allowed to have in-person contact one weekend per month, and during specified holidays and summer periods.
For the full text of the decision, see:
M.M. v. K.M., 2023 ONCJ 314 (CanLII)
