When family relationships break down important extended family links can also be interrupted, including grandparents, who can find themselves sidelined and denied contact with their grandchildren. Grandparents can play important roles in children’s lives and be positive role models which can be jeopardized when family relationships turn acrimonious.
Ontario’s Children’s Law Reform Act permits a grandparent to apply to the court for an order for custody or access to a child. Any decision regarding custody or access must be made on the basis of the child’s best interests, with the legislation guiding courts in determining a child’s needs and interests by providing factors that a court must consider. There is no automatic right of access to children by third parties.
The leading Ontario case of Chapman v. Chapman acknowledged that parents have the right to decide the extent of contact between children and their grandparents, so long as the parents are attentive to their children’s needs. Without any evidence that parents are behaving contrary to the best interests of a child their right to make decisions will be respected. Parental wishes carry weight, and care must be taken not to interfere with parents’ ability to determine the nature of their child’s upbringing. Yet, where family relationships are arbitrarily jeopardized, courts may intervene.
Grandparent Relationships with Children Can be Enriching
Courts have acknowledged the positive role that grandparents can play in children’s lives. In Chapman, the court noted that a child’s relationship with a grandparent can enhance the emotional wellbeing of a child, and that “loving and nurturing relationships with members of extended family can be important for children.” Normally it will be beneficial for children to have contact with grandparents and other extended family members. Extended families have a role in providing children with the opportunity to know their heritage and their background.
In Tramble v. Hill, the judge accepted that in most cases a child’s best interests can be met by keeping the maternal and paternal and other family links as open as much as possible. This provided an advantage in making the child aware of a wider base of affection and accessing an extended support network. As the judge noted, “pride, affection, stability and assistance are available from extended family links.”
Ordering Contact can Jeopardize Children’s Stability
In the recent case of Phillips v. Drover, an application was made by the children’s maternal grandmother seeking access to the children. The parents were separated, and both respondent parents opposed any grant of access. The applicant alleged that her contact with the grandchildren was arbitrarily ended by the respondent mother, and that it would be in the best interests of the children to have contact with her. Both the respondent mother and father opposed any contact, characterizing the children’s previous contact with the applicant as toxic. The case was heard following amendments to the Children’s Law Reform Act which provided a more detailed list of factors for consideration in determining contact in accordance with the best interests of the children. The legislation directs courts to give primary consideration to the child’s physical, emotional and psychological safety, security, and well-being.
The judge declined to grant the applicant’s proposed order, finding that the security and stability of the children would be threatened by ordering the grandmother to have defined contact with the children. The applicant was unable to demonstrate she had maintained a close and “child-focused” relationship with the children. Though there was evidence she provided childcare assistance, time caring for children was not found to necessarily equate to a close, secure, and safe relationship. Also, the decision by the respondent mother to deny access was not arbitrary but was made after considering the applicant’s past behaviour and the effect the denial of contact would have on the children.
An Atmosphere of Conflict Works Against Fostering Relationships
In declining to grant the applicant grandmother’s request for contact, the judge paid significant attention to the level of conflict between the parties, noting that the atmosphere at these early stages had the markings of a contentious civil proceeding. That would work against the type of environment needed for the children to be comfortable in renewing a relationship with the grandmother. As the children were aware of the dispute their emotional and psychological security would be impacted. While the parties professed to be acting in the best interests of the children, the judge found them to be engaged in their own battle, making any communication between the parties difficult given the high degree of tension and animosity.
The judge appears to appeal to the parties to find a way to solve their dispute noting that courts cannot be a source of resort for every parenting decision. Before the court proceedings, there was a relationship between the extended family members, and rather than forcing contact through a court order which may entrench resistance, the judge speculated that some form of contact could be agreed to between the parties. Rather than exposing the children to conflict through the order, what was needed was a break while the parties reconsidered on what basis a relationship could be rehabilitated. This is a reminder that pursuing a remedy through the courts can damage relationships and expose conflict that is at odds with children’s needs. At times proceeding outside of court can be more appropriate given the interests at stake in advancing extended family relationships.
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