September 22, 2014
While grandparents may feel a strong connection to their grandchildren, sometimes they may not be able to see their grandchildren, for a number of reasons, including: death of a child, relocation of a child, alienation of a child, or divorce or separation of grandchildren’s parents.
Grandparents may ask what they can do to maintain a relationship with their grandchildren if one of the above circumstances arises. So, what as grandparents, can be done?
- Do grandparents have automatic rights to see their grandchildren?
- No. There is no automatic right for grandparents to see grandchildren. It is generally up to the children’s parent(s) to decide whether children will see grandparents or other family members.
- Historically, grandparents had similar legal rights as non-parents to obtain access to grandchildren: effectively no legal rights.
- So what can a grandparent do if they don’t like the parent’s decision about access?
- A grandparent may apply to court for access to a grandchild.
- With the contemporary view of access, access to grandparents is now considered by the Court.
- In 2001 the Ontario Court of Appeal sets out the leading grandparent access case in Chapman v Chapman 2001 CanLii 24015. This case establishes that generally judges will defer to the decisions made by the parents regarding access to their children since their decision-making authority is normally considered final and ultimate.
- If you are considering going to court to apply for access to a grandchild, you should talk with a lawyer.
- Do grandparents need to go to court to see their grandchildren?
- No. There are many alternative options available other than court. Try to work things out informally with the grandchildren’s parents. Alternatively, attend family counselling or mediation.
- If the above alternatives are unsuccessful, commencing a court proceeding may be used as a last resort.
- How does the court decide whether to grant grandparents access?
- It is not about the grandparents’ wishes or desire to see the grandchild, though that is a good start.
- A court will look at the best interests of a child to determine whether or not grandparents should have access. The best interests of a child are set out in Section 24(1) of the Children’s Law Reform Act. However, a court looks at the test differently when dealing with parents vs. grandparents.
- A court also looks at a number of questions that must be answered in the affirmative before a court will generally intervene. The questions are:
- Does a positive grandparent and grandchild relationship already exist?
- Has the parent’s decision imperilled the positive grandparent and grandchild relationship?
- Has the parent acted arbitrarily?
- If all three questions are answered in the affirmative, generally a court will step in to intervene to grant grandparent access based on what is in the best interests of the child.
Consulting a lawyer is a good investment to decide whether you have a strong enough case to take to court. Lawyers are also trained to present the case to the court in the most effective way- addressing the crucial questions based on evidence, not emotion. Also, lawyers are trained to question parents who are opposing grandparent access, to increase the grandparent’s odds of success.