Grandparents and other extended family members can play an important role in the lives of children, providing support and guidance. These relationships can be beneficial to children but can be interrupted when parents deny contact and restrict grandparents from spending time with their children.
Ontario law allows non-parents to make an application for contact with a child. This sets courts up to evaluate whether parents should make the final determination on who visits their children, or whether those wishes do not respect the best interests of the child.
Section 21 of the Children’s Law Reform Act states that a parent or any other person, including a grandparent, can apply to court for an order respecting decision-making authority or contact with respect to a child. In making a decision the court is guided by the child’s best interests, and the court must consider all the factors related to the child’s circumstances. Section 24(2) gives priority to the child’s physical, emotional and psychological safety, security and well-being.
Chapman v. Chapman is one of the leading Ontario decisions on grandparent contact with a child. In that case the court emphasized that each case is determined on its own unique circumstances, and that the focus is on what is in the best interests of the particular child, and not the grandparents. The Court of Appeal held that where parents are “demonstrably attentive” to the needs of their children it is the parents who have the right to set the terms of any contact with the grandparents. They have the right to make decisions, unless there is some evidence indicating their decisions are incompatible with the child’s best interests.
In Ninkovic v. Utjesinovic it was argued that amendments to the Children’s Law Reform Act changed the law on grandparent access. Specifically, it was suggested that the addition of the word “grandparent” in section 21(1) and 24(2)(a)(i) gave enhanced standing to grandparents. However, the court rejected this argument, noting that multiple cases have explained that the amendments did not create new rights for grandparents, but merely articulate those persons who might seek an order for contact or decision-making authority with respect to a child.
The court emphasized that there is no presumptive legal right of access by grandparents to their grandchildren. While deference is generally given to the parents to decide the amount of contact, this is not absolute. In Giansante v. DiChiara Justice Nelson outlined three questions that if answered affirmatively, could displace the parents’ right to decide the extent of contact with a grandparent:
- Does a positive grandparent-grandchild relationship already exist?
- Has the parent’s decision imperilled the positive grandparent-grandchild relationship?
- Has the parent acted arbitrarily?
There is recognition from courts of the beneficial role that grandparents can play in the life of children. In Chapman, the court explained that a relationship with a grandparent can “enhance the emotional well-being of a child”, and that “loving and nurturing relationships with members of extended family can be important for children”. But what constitutes a positive grandparent-grandchild relationship?
In Sproule v. Sproule, the court decided that there had to be more than the occasional pleasant experience with the children. Instead, the relationship should consist of a close bond “with strong emotional ties deserving of preservation”. This will generally require the child to have spent considerable time with the grandparent over a period of time before the matter comes before the courts.
In Torabi v. Patterson, Justice Kurz considered the question and set out a four-part test to determine if a positive relationship existed:
- There must generally be a substantial pre-existing relationship, with strong, loving, and nurturing ties;
- The relationship must be constructive for the child in the sense that it is worth preserving. If relations are too poisoned, a previously positive relationship may not be capable of preservation;
- The determination must include the age of the child and the time since the child last saw the relative; and
- A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.
The focus remains not on what is good for the grandparent, but what is in the best interests of the child. In Chapman, there was no positive relationship as the children had negative feelings about the visits with the grandparent, the visits were rare, and the visits were disruptive. Another consideration that courts have identified is whether ordering access against the wishes of the parents might destabilize the family unit. In Blackburn v. Fortin,
Justice Smith found that this was a factor that weighed against any possible benefits to the children in maintaining a relationship with a grandparent, as there is a risk of involving the children in conflict and hostility between their parents and the grandparent, with potential harmful effects.
When deciding whether to re-establish contact between a child and a grandparent, courts pay attention to the amount of time that has elapsed since visits were terminated, and the effect this may have on the relationship.
In Ninkovic v. Utjesinovic, the judge determined that the decision ending the grandmother’s access to the child was contrary to the child’s best interests. It was relevant that contact was terminated when the child was two years old, and that he was now four. However, he should not be deprived of the benefits of the relationship simply because time had passed, and contact was denied for so long. Justice Madsen did find that any order had to account for a period of re-introduction given the child’s age and the amount of time between their last contact.
Similar concern emerged in Sproule. At an earlier time, there was a substantial connection between the child and the applicant grandmother. Because contact was terminated that relationship did not exist for two years. The judge was very concerned about the amount of time it took for the applicant to bring the matter before the courts, noting that “absence does not make the heart grow fonder when dealing with children of any age. The younger the child, the less likely the relationship bonds can remain intact.”
In this instance the relationship that once existed dissipated in the months that passed. The judge found that there was no need for the relationship to continue when balanced against the parents’ responsibilities to decide who can have contact with their children.
It was also important that there was certain to be conflict between the parties, which led to the conclusion that there was little the children would gain from restarting the relationship. Ordering contact now would expose the children to the conflict and cause stress, such that it was not in their interests to order contact with their grandmother.
There is no presumptive right granting grandparents contact with their grandchildren. Instead, parents are able to make decisions concerning their children. However, in some circumstances it may be in the child’s best interests to resume contact if a parent has terminated visits; but the onus will be on the grandparent to demonstrate this.
A grandparent seeking to resume contact should act promptly, as courts have noted that relationships with young children can deteriorate quickly in a grandparent’s absence.
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