January 20, 2017
By Brad Smith
Co-Authored by Nick Baxter (Law Student, Bora Laskin Faculty of Law)
Bill 34, the Children’s Law Reform Amendment Act (Recognizing Relationships with Grandparents), 2016, came into force on December 8, 2016. It amended section 21(1) of the Children’s Law Reform Act to state “a parent of a child or any other person, including a grandparent” may apply for a court order for custody or access of a child. Similarly, section 24(2) was changed to state the court shall consider the love, affection and emotional ties between the child and “each person, including a parent or grandparent,” entitled to or claiming custody or access.
These changes appear to state a grandparent may now apply for custody or access to a child and the relationship with a grandparent is a factor when deciding the best interests of a child.
But prior to Bill 34, Section 21(1) of the Children’s Law Reform Act (CLRA) authorized “a parent of a child or any other person” to apply for a court order for custody or access of a child. A grandparent was considered “any other person” who could apply for custody or access. There were many cases where a grandparent applied for and received custody or access before Bill 34 was passed. In addition, the relationship between a child and grandparent was often a factor in assessing a child’s best interest.
It is arguable Bill 34 does not change the law regarding who can apply for custody or access or what the court considers in determining the best interest of the child. This begs the question why legislation was introduced.
The original draft bill had more substantive changes such as a provision that prevented custodial parents or guardians from creating “unreasonable barriers” for grandparents seeking access to a grandchild and more emphasis on the relationship with the grandparent in the best interests of the child analysis. The Standing Committee amendments struck these substantive changes from Bill 34. Although time and court decisions will determine the effect of Bill 34, it is likely Bill 34 is only a symbolic change for grandparents.