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Posted on February 21st 2006 in Family Law

Do Grandparents have a right to access?

Do Grandparents have a right to access?

As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must be crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose.
Madam Justice L’Heureux-Dubé
Young v. Young, [1993] 4 S.C.R. 3

When we talk about access, which includes the right to visit and to be visited by a child, we usually think in terms of the rights of a non-custodial parent. However, as more and more families are affected by divorce, members of the extended family often see their relationship with nieces, nephews, cousins and grandchildren begin to slip away. Grandparents in particular may be affected, especially if their child is not the custodial parent. In addition, there are cases where parents and grandparents simply do not see eye-to-eye and the former will cut off or substantially reduce the grandparents’ access.

In the province of Ontario there are two specific pieces of legislation that govern the issue of access. The first is the Divorce Act, which applies only to children of a marriage. The Act states that a court may make an order for custody or access on application of either of the spouses, or by any other person. A grandparent would fall into this latter category, however he or she must seek the court’s permission to bring such an application. The second piece of legislation is the Children’s Law Reform Act. According to this law, a parent of a child or any other person may apply to a court for an order respecting custody of or access to the child . . .

While access is, generally speaking, a given in the case of the parent who does not have custody, there is no presumptive right to access for others, including grandparents. Rather the relationship between a grandparent and grandchild is expected to be maintained through their own child. In fact the onus is on the grandparent(s), who is applying for access, to prove that an on-going relationship is in the best interest of the child.

This was precisely the situation in the Ontario Court of Appeal case of Chapman v. Chapman. In that case the grandmother was seeking increased access to her two grandchildren.

The paternal grandmother could be rather strong willed and the relationship between she and the children’s mother had always been a difficult one. Over the years, the frequency of the grandmother’s visits with her only grandchildren had decreased to only a few times a year. In addition, the relationship between the grandmother and her grandchildren was not a very positive one.

Believing that it was in the best interests of the children generally to have access to members of their extended family, the grandmother applied for monthly access and weekly telephone access. Although the parents did not oppose access, they felt that as the parents, they should determine when and how access should take place. The grandmother was successful and the trial judge ordered access for at least 44 hours per year to be made up of at least six visits. The parents appealed.

The Ontario Court of Appeal agreed with the parents that it was generally up to parents to decide if and when certain people should have access to their children. The Court concluded that so long as there is no evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their wishes should be respected.

In dismissing the grandmother’s application for access, Madam Justice Abella stated:

Although it may appear to be insensitive to the grandmother’s needs for the parents to resist her efforts to decide how access is to be exercised, this case is not about the needs – or even the wishes – of Esther Chapman. It is about the needs and best interests of the children. The issue must be looked at from their, not the grandmother’s perspective.

This is just one of a number of cases that has been decided in recent years involving grandparents seeking access. When making a decision about access, or any other matter involving children, the sole consideration of the courts is what is in the best interest of the child.1 However, there are a number of factors that will be taken into account in determining what those best interests are, including:

• the objections/wishes of the custodial parent, particularly if there is no obvious benefit to the child from ongoing contact with the grandparent;
• whether or not there is an established, ongoing and positive relationship between grandparent and grandchild;
• whether the grandparent has or will act in such a way as to undermine the parent(s) or the child’s relationship with the parent(s);
• whether continued contact poses a risk to the child or the stability of the child’s home life;
• the severity of the conflict between the child’s parents in the case of separation;
• whether the grandparent has something special to offer the child, particularly from a family or cultural point of view;
• whether the child will experience a sense of abandonment if the grandparent is shut out of the child’s life.
Most agree that grandparents play an important and unique role in the lives of our children. However, that relationship can become an unwitting casualty if the relationship, between the child’s parents or the relationship between the adult child and parent, sours.

Although access can in theory be re-established through the courts, in Ontario a grandparent has no special legal right to see their grandchildren. While Alberta, Newfoundland and Quebec have all passed legislation granting specific status to grandparents in access cases, to date Ontario has not seen fit to do so. 1

For more about the meaning of best interest of the child please refer to In The Best Interests of the Children in the Fall 2002 issue of Legal Issues.