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In most decisions related to access to children, the parties involved are one of the parents of the child. However, as seen in a recent decision from the Ontario Superior Court of Justice, there can be occasions when issues around having access to a child pop up between parents and other parties, such as in this case, grandparents. The decision, which was issued this week and heard on March 22, is one of the first to come out of Ontario courts after amendments to Canada’s family laws came into effect.

Falling out leads to revocation of access

The parents (who are separated) were both respondents to the application made by the children’s maternal grandmother. The parents have two children, born in 2012 and 2014, and for many years the children and the grandmother would spend time together, including instances when the grandmother provided childcare.

The parties had a falling out, and while the court did not get into great detail about what led to it, the decision does state that the mother had been dating the former boyfriend of the grandmother at the time access was revoked.

The grandmother told the court that he access to the children was arbitrarily ended, and that it would be in the best interests of the children to have access among them scheduled and enforced on a temporary basis while the matter is awaiting a full trial.

The best interests of the children

The court noted that the case was heard shortly after amendments to the Children’s Law Reform Act, which state that in cases regarding access to children, the court shall only consider the best interests of the child, and that primary consideration must be made for the children’s physical, emotional, and psychological safety, security, and well-being. Factors that can help in determining this include:

  1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  2. the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  3. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
  4. the history of care of the child;
  5. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  6. (the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  7. any plans for the child’s care;
  8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  9. (the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
  10. any family violence and its impact on, among other things,
  11. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
  12. the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
  13. any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Would it be in the best interests of the children to enforce access with their grandmother?

The court noted that the relationship between the parents and the grandmother has had a significant falling out, and there is litigation pending between the parties, including a full hearing on this matter.

The court found that the children are aware of the situation between the parties, noting that it has the potential to drag on for years. In addition, other family members provided evidence in support of the parents, stating that the grandmother is a “a toxic person in general and specifically with regard to the children.”

In determining that it would not put a temporary access order in place, the court also noted that the children have stated they do not wish to see their grandmother.

Contact Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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