Grandparents often have a strong bond with their grandchildren and usually wish to maintain a close relationship with them. In Ontario, there are laws that govern the rights of grandparents’ contact with their grandchildren. In some cases, obtaining a contact order for a grandchild can be challenging.
Grandparents may obtain a contact order for their grandchildren by reaching an agreement with the parents or by seeking an order from the court. The Children’s Law Reform Act and the Divorce Act are two statutes that govern grandparents’ rights to contact orders for their grandchildren. When both parents are together, the Children’s Law Reform Act outlines the rights of grandparents, including the right to visitation and the right to make decisions about their grandchildren’s upbringing. When parents are separated, the Divorce Act outlines the rights of grandparents to access their grandchildren. This includes the right to apply for contact with their grandchildren and the right to apply to make decisions about their grandchildren’s upbringing. However, case-law has confirmed that pieces of legislation simply “articulate the […] persons who may seek an order for contact. It does not extend their rights or give them any special standing” to obtain a contact order. Hinrichsen v. Regimbald et al., 2021 ONSC 7503 (CanLII) at para 21.
Grandparents may obtain a contact order for their grandchildren by reaching an agreement with the parents or by seeking an order from the court. The Children’s Law Reform Act and the Divorce Act are two statutes that govern grandparents’ rights to contact orders for their grandchildren. When both parents are together, the Children’s Law Reform Act outlines the rights of grandparents, including the right to visitation and the right to make decisions about their grandchildren’s upbringing. When parents are separated, the Divorce Act outlines the rights of grandparents to access their grandchildren. This includes the right to apply for contact with their grandchildren and the right to apply to make decisions about their grandchildren’s upbringing. However, case-law has confirmed that pieces of legislation simply “articulate the […] persons who may seek an order for contact. It does not extend their rights or give them any special standing” to obtain a contact order. Hinrichsen v. Regimbald et al., 2021 ONSC 7503 (CanLII) at para 21.
The principle of parental autonomy established in Chapman v. Chapman, 2001 CanLII 24015 (ON CA) saw grandparents who sought an order granting access to their children opposed by the parents. In this case, the court found that the parents had the right to make decisions about the care and who could contact their children, including decisions regarding contact with grandparents. Parental autonomy has been applied in many cases involving disputes between grandparents and parents over access to children. The courts have suggested the following three questions must be answered in the affirmative for the principle of parental autonomy to be overrode:
(a) Does a positive grandparent-grandchild relationship already exist?
(b) Has the parent’s decision imperilled the positive grandparent-grandchild relationship?
(c) Has the parent acted arbitrarily?
Giansante v. Di Chiara, 2005 CanLII 26446 (ON SC) at para 18.
However, Chapman v. Chapman also acknowledges that the court should consider the best interests of the children when making decisions about access to grandparents. In particular, the Court of Appeal for Ontario noted that “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 imperiled 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.”
The question of whether a grandparent will be granted any access rights to a grandchild is determined by the best interests of the child. In Gordon v. Goertz, the Supreme Court of Canada clarified that the best interests of the child is the only test to be used when making orders regarding the children in the case. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27. Therefore, the court will consider the unique circumstances of each case when making a decision about access and will only consider the impact of the decision on the children.
As such, parental autonomy , should not be held with equal weight against the best interests of the children, and is instead a factor in the best interests test that is given significant consideration.
In some cases, the courts have recognized the importance of preserving the principle of parental autonomy and have upheld the right of parents to make decisions about the care of their children. However, in other cases, the courts have recognized that the best interests of the children may be served by granting grandparents access to their grandchildren. In some cases, the court has considered the relationship between the grandparents and the children, as well as the potential benefits of the relationship for the children, when making decisions about access. The courts have also considered the impact that denying access has on the grandparents and the children, how long the grandparent has been involved in the grandchild’s life, the respective wishes of the parents and the children, and the specific situation and factors of the matter that contribute to the best interests of the child.
Importantly, in some cases, grandparents may even act as the parent if the parents are unable to care for the child due to incapacitation, illness, or incarceration. In such cases, grandparents may become the primary caregiver of the child. There are also cases where the court has split decision-making responsibility between parents and grandparents and has ordered that the children reside with the grandparents, while allowing the parents access time. Durdle v. Kleber, 2022 ONSC 2647 (CanLII)
The process by which a grandparent takes on a parental role typically involves a formal decision-making and parenting time (custody) arrangement, which can be established through a court order or agreement between the parties. To obtain an order from the court granting them the authority to act as the primary caregiver, grandparents must satisfy the court that they can provide a suitable home and care for the child. The court will also consider the wishes of the parents in determining whether to grant the order. Ultimately, the grandparents may only be able to seek legal guardianship of the child. The process for obtaining legal guardianship varies depending on the situation, and grandparents should consult a lawyer to understand their rights in such cases.
When one parent has passed away or left the home and has no contact with the child, the rights of the grandparents may be affected. In such cases, the grandparent may still be able to seek access to the child, but the court will likely take into account the wishes of the remaining parent when making a decision on access. For instance, in one case, the mother and child lived with the maternal grandparents after the separation. Following the mother’s death, the father was awarded sole custody. The father opposed any access to the maternal grandmother. The maternal grandmother’s application for interim access was dismissed. The court noted that the child had lived with her maternal grandparents during the first seven years of her life and had been subject to longstanding animosity and distrust that had existed between the mother, the maternal grandparents, and the father. A third-party report highlighted the detrimental effect on the child’s behaviour. The court concluded that contact with the grandparents, while desirable, would impede the child’s progress. Therefore, the maternal grandparents were denied any contact, except that they could address written correspondence to the child, provided certain conditions were met. Diab v. Daher, 2011 ONSC 1064 (CanLII).
The only way for grandparents to exercise their rights to contact and have access with their grandchildren in case of dispute, or seek to take care of them, is to make an application to the courts for a contact order or parenting order respecting decision-making responsibility with respect to the child.
Stephen Durbin & Associate’s team of custody and access lawyers specialize in assisting with parenting, access, and custody-related issues such as grandparents’ rights to have contact with their grandchildren. We provide experienced legal counsel and representation to help ensure your and your grandchildren’s rights and interests are protected.
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