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Grandparents’ Rights in Canada: An Overview

Published: October 12, 2021

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Grandparents’ Rights in Canada: An Overview

The bond between grandparents and grandkids is a special one. When the relationship is good, grandparents can even enjoy a co-parenting role. They can assist parents with childcare and help provide emotional and financial assistance. In a growing number of households across Canada, grandparents are part of a multigenerational home or are even primary caregivers for their grandchildren.

According to recent data from Statistics Canada, there were about 7.5 million grandparents in Canada aged 45 and over in 2017, which represented nearly half of all people in that age group. In the 2021 Census, almost 1 in 10 children aged 0 to 14 years (about 553,855 children) lived in the same household as at least one grandparent.

With more children growing up alongside their grandparents, questions about grandparents’ legal rights arise more often, especially after a separation, divorce, or family conflict. This overview explains how the law in Ontario and across Canada treats grandparents’ rights, and what both parents and grandparents should keep in mind.

Legal Rights of Grandparents in Canada

Grandparents do not have an automatic right to see their grandchildren. However, both federal and provincial laws recognize that grandparents can play an important role in a child’s life, and they now explicitly allow grandparents to ask the court for time with a child or, in some cases, decision-making responsibility (formerly called custody).

In Canada, two main laws are usually involved:

  • The Divorce Act (a federal law) applies when the child’s parents are divorcing or are already divorced.
  • The Children’s Law Reform Act (CLRA) applies to parenting disputes in Ontario involving unmarried parents, separated but not divorcing parents, or married parents who are not currently involved in a divorce proceeding.

Parents cannot arbitrarily cut their kids off from their grandparents over a disagreement. If the dispute has no bearing on the child’s well-being, they can stay in contact.

Children’s Law Reform Act: Parenting And Contact Orders

The CLRA was amended to modernize language and to better recognize the role of grandparents in children’s lives. Under section 21, any person, including a grandparent, may apply for a parenting order (decision-making responsibility and/or parenting time) or a contact order with respect to a child.

In practical terms, this means that a grandparent can ask the court for decision-making responsibility (similar to what used to be called custody), a role in major decisions, or structured time with the child. A grandparent who is not a primary caregiver can also ask for a contact order that provides a schedule for calls, visits, or other forms of contact.

When deciding whether to grant a parenting or contact order, the court must consider the best interests of the child. To determine this, under the updated CLRA, the court looks at factors such as:

  • The child’s needs, age, and stage of development.
  • The nature and strength of the child’s relationship with parents, siblings, grandparents, and others important to them.
  • The child’s views and preferences, where appropriate.
  • Any history of family violence or safety concerns.

Notably, the CLRA was specifically amended to mention grandparents by name and to require the court to consider the emotional ties between a child and their grandparents. This reflects the Legislature’s recognition that grandparent-grandchild relationships can be very significant.

Divorce Act: Contact Orders For Grandparents

Where there is a divorce proceeding, grandparents generally rely on the Divorce Act to ascertain their rights. Since the 2021 reforms, non-parents, including grandparents, can apply for a contact order under section 16.5.

A contact order allows a person other than a parent to spend time with the child. A grandparent usually needs the court’s permission (called “leave”) to start such an application if a parenting case is already before the court.

The Divorce Act also sets out a list of best interests of the child factors, which again include the nature and strength of the child’s relationship with grandparents.

Parents’ Autonomy And Best Interests Of The Child

Canadian courts are cautious about overriding the wishes of capable parents. The Ontario Court of Appeal has emphasized that, generally, courts should respect parents’ decisions about who their children see, unless there is strong evidence that intervening is necessary to protect a child’s best interests.

This does not mean grandparents never succeed. It does mean that:

  • The burden is on grandparents to show that ongoing contact would benefit the child.
  • Courts are more likely to intervene where there was a strong, pre-existing relationship between the grandparent and the child, and where cutting off contact would be harmful to the child.

Grandparents can rely on section 16 of the Divorce Act when putting together their claim. Section 16.5 of the Divorce Act states:

  • 16.5 (1) A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.
  • 16.5 (2) The court may, on application by a person referred to in subsection (1), make an interim order providing for contact between that person and the child, pending the determination of the application made under that subsection.
  • 16.5 (3) A person may make an application under subsection (1) or (2) only with leave of the court, unless they obtained leave of the court to make an application under section 16.1.

This type of application generally should not be brought to create a relationship, in the case where no prior relationship exists.

Visiting Rights of Grandparents in Canada

In ideal situations, there would be no need for grandparents to apply for visiting rights. Still, every family has unique dynamics with the potential for complicated relationships.

However, if a parent stops contact and informal discussions fail, a grandparent may consider applying for a contact order or parenting order. In deciding whether to grant visiting rights, the court will consider:

  • Why contact was stopped in the first place.
  • How close and consistent the relationship between the child and the grandparent was before the conflict.
  • Whether grandparent involvement will support or undermine the child’s relationship with their parents.
  • Whether the grandparents respect the parents’ role and boundaries.

The court does acknowledge the vital role of good grandparent-grandchild relationships. Visitation allows grandparents and grandkids to form healthy bonds. If the grandparents’ intentions are in good faith, the judge may be likely to approve the request.

Depending on the intricacies of the case, the court can limit visitation to the following:

  • Telephone or webcam conversations
  • In-person visits on a set schedule
  • Letters
  • Attendance at family get-togethers
  • Or other arrangements

If the judge rules that contact with grandparents will be detrimental to the child’s welfare, they could also order all contact to stop.

Can Parents Refuse Grandparents’ Visitation Rights?

If you can prove that having your child’s grandparents in their life would negatively impact your child’s welfare, you may have grounds to refuse the grandparents’ visitation rights.

When necessary, the court can completely bar grandparents from contacting their grandkids. This will most likely happen in alarming situations that endanger the child.

Situations where refusing grandparent contact may be appropriate can include:

  • The child strongly objects to seeing their grandparents. This is a clear sign that the relationship is not in the child’s best interests. If the child is the first to reject the request without pressure to do so from a parent, the grandparents may be denied visitation or contact.
  • The parents and grandparents have an irreparable personal relationship. Putting the child in high-conflict situations could cause more harm than good. Perpetual conflict may arise when parents and grandparents cannot set aside personal disputes.
  • The child is in danger when in contact with grandparents. If a grandparent is abusive or incapable of caring for the child, the court may determine that it is best to prohibit contact.
  • The grandparents are actively trying to undermine the parents’ authority. If grandparents are repeatedly criticizing a parent to the child, ignoring set parenting rules, or trying to assume the role of primary caregiver without justification, they may be denied contact. Unless proven unfit in court, a child’s parents are still in charge of their welfare.

In these circumstances, the court will still look at the child’s best interests, but it may accept that limiting or ending contact is necessary to protect the child. Courts are generally reluctant to impose contact that will destabilize a child’s home or undermine capable parents.

Parents who are concerned about a grandparent’s behaviour can discuss parenting issues with a Toronto child custody and access lawyer to understand how a contact dispute may interact with parenting time and decision-making.

Practical Steps Grandparents Can Take Before Going To Court

Court is not always the first or best step. In many cases, it may help for grandparents to:

Protecting Your Children From Their Grandparents

Sometimes, conflict with grandparents goes beyond a simple disagreement. If a grandparent is abusive, refuses to respect boundaries (of either the parent or child), or repeatedly harms the child’s emotional well-being, parents may need to take stronger legal steps.

Options can include:

  • Seeking legal advice about contact and parenting orders under the CLRA or Divorce Act, including asking the court to bar or strictly supervise contact.
  • In serious situations involving neglect or abuse, contacting child protection authorities under the Child, Youth and Family Services Act.
  • Exploring whether a restraining order or other protective order is appropriate in situations of family violence.

Parents who are worried about a grandparent’s influence or behaviour may also want to understand how concepts like parental alienation can arise when adults encourage a child to reject another family member.

Remember that each case is highly fact-specific. Courts will take a close look at the particular family dynamics, including the child’s wishes, the history of care, and any safety or mental health concerns.

Speak To A Toronto Family Lawyer About Grandparents’ Rights

Whether you are a grandparent hoping to stay in your grandchild’s life or a parent concerned about a grandparent’s behaviour, it can be overwhelming to face these issues alone. The law is complex, and outcomes always depend on the specific facts and the child’s best interests.

The Toronto family law lawyers at Gelman & Associates provide practical, compassionate advice about grandparents’ rights, parenting orders, and contact orders throughout the Greater Toronto Area and across Ontario. We can explain how the Children’s Law Reform Act and the Divorce Act apply to your situation, help you explore out-of-court solutions where possible, and represent you in court when necessary.

To discuss your options, contact us online or call (844) 736-0200 to book a consultation with a family lawyer. We have offices in Toronto and across the GTA, and we are here to help you navigate these difficult conversations with your child’s well-being at the centre.

 

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - child custody & access

It is not uncommon for someone to want to relocate after a divorce. If you still live in the marital residence, the familiar surroundings and memories may be too much for your heart to handle. Or in the process of reinventing yourself post-divorce you may want to take a new job, move closer to your friends and family, or simply wish to start fresh somewhere new. There are many reasons a person may want to move after going through a divorce, however if you have children you will need to think twice before making a big move.

Emotionally, it can be challenging for a child to move to an unfamiliar place. Often, they are most at ease in a familiar environment with access to family and friends. Changing schools, living in a new city or even a new house can be difficult on a child, especially after dealing with the emotional turmoil associated with divorce.

Legally, there are certain implications to relocating away from the current jurisdiction where the children ordinarily reside. Before moving you and the noncustodial parent can negotiate with the absence of a lawyer, a written agreement about the moce and any changes to visitation that may be needed. If you cannot reach an agreement about the move, you then must file an Application/Motion to the court to hear your matter and for a judge to make a decision before you move. Usually the court requires at least 30 days notice to the other parent of your court Application/Motion. It may take longer to reach an agreement with the other parent or get a court order. It is a good idea to give notice of 90 days before the move, as as soon as possible and to consult with a lawyer first. Upon receiving this notice, they can challenge your proposed change of residence or apply for a variation to the existing custody or access orders.

The leading case that sets out the legal test in determining mobility is Gordon vs. Goertz (1996) 2. S.C.R. 27

Similar to any other action involving variation of an existing custody order, the person challenging the relocation has to show that the move will result in a material change in circumstances affecting the child. Once this has been established, a judge will determine the best interests of the child in light of the relevant circumstances. These relevant circumstances include the existing custody and access relationship, the relationship between the child and the custodial parent, the views of the child, and the reason for the proposed change of residence among other circumstances. As with every other custody proceeding, the judges determination will turn on the best interests of the child. The judge’s inquiry is individualized and will involve all factors relevant to the case at hand.

Because mobility has become so easy in today’s society, often separation agreements or custody orders will address relocation and place specific restrictions on changing residences. Non-removal clauses that ban the extra-provincial removal of children without consent of the noncustodial parent. In these cases, the custodial parent who wishes to relocate will have to initiate the action by placing an application with the court.

If you are contemplating a move, you must consider the emotional needs of your child, as well as your former spouse’s right to challenge your relocation. Typically, courts only allow a custodial parent to relocate if the proposed move is in good faith and not intended to frustrate the noncustodial parent’s relationship with the child. Additionally, if a custodial parent relocates, they must be willing to accommodate the noncustodial parent’s access to the child; sometimes this means that the relocating parent will have to pay the additional costs of access.

In sum, if you are a custodial parent, moving isn’t as easy as just loading up the car and hitting the road – but it is still possible.

Yes, but they will need to establish paternity, especially if the father and the mother separate. Here are the ways to establish paternity as recognized by the court:

  • Act of birth
  • Presumption of paternity
  • Uninterrupted possession of status
  • Voluntary declaration

No. Even when the parents are unmarried, divorced, or separated, one parent cannot keep the child from seeing the other unless the court deems it appropriate to the child’s best interests.

Historically, mothers have been more likely to get sole custody of their child in both consent and contested orders, as they are usually the child’s primary caregiver. However, as more mothers also work outside the home, courts could also rule in favor of the father.

The majority of judges strive to make decisions that are in your children’s best interest. Giving full custody to one parent is usually the best option, except in cases with concerns such as child or substance abuse. This typically means keeping in contact with and maintaining relationships with both parents.
You should do everything possible to prepare for the subsequent child custody negotiations, whether you’re a parent seeking full custody or shared custody:
Be honest with yourself about your ability to manage things alone, in terms of practicality, finances, and other factors. You may get the result you want by presenting the strongest case for custody by doing the following:

  • Make a Strategy: If custody is granted, a court will expect you to be ready. Compile thoughtful replies to hypothetical queries posed in court.
  • Speak with people who have gone through the child custody procedure before you. They may provide you advice and tell you what to anticipate.
  • Judges look for proof of a meaningful relationship in addition to making sure you can provide a child’s practical and basic needs. Simply put, be involved in your children’s lives.
  • Continue to pay child support regularly, whether you’re asking the court for full or shared custody. When you start the procedure, you’ll want to make sure you have a strong track record.
  • Keep a detailed log of your visitation schedule. This is a crucial aspect of obtaining child custody. Visitation records reflect how often you see your children under the present arrangements and your dependability, as well as dedication to them.
  • During all child custody hearings, the court will inquire about acceptable living accommodations. Even if you live in a tiny apartment, you should create a unique and secure environment for your child.
  • Courts may determine child custody in part by how you treat your child’s other parent. Being hostile or unpleasant to the other parent makes collaborative decision-making more complicated and can break apart parent-child ties. As a result, judges are more inclined to favor the parent who isn’t behaving badly.
  • While parents typically spend a lot of time thinking about what they believe is best for their children, children’s perspectives are sometimes overlooked. The court will be interested in learning what the children desire and will most likely question them directly at some point throughout the proceedings. You can better inform your decision-making by asking your child what they think.

No. Parenting time and child support are different from each other. While it is a child’s right to be provided with financial support, it is also their right to spend time with their parents. Thus, even if the child support was cancelled the parent formerly supporting can still enjoy parenting time with the child.

“There is no fixed age for when a child can say which parent they want to live with after a divorce. However, by law, a child must be 16 years old to decide on this matter. The exception to this is when there is a court order stating that a child/ren must live with one parent until they turn 17 or 18.
“

Under certain circumstances, it is possible to legally prevent your child/ren’s father from seeing or contacting them. It may be necessary if he presents a potential danger to your child/ren. If you were never married to the father of your child and there is no court order saying otherwise, you can do anything you want until paternity is confirmed.

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