Grandparent Rights: An Overview

Grandparents play an integral role in the lives of their grandchildren. They provide care, guidance, and are often important support systems for their grandchildren. When parent’s separate, there may be tension that arises from the family conflict. Grandparents at times can become “caught in the middle” which leaves them estranged from their grandchildren. When this happens, grandparents may need to lean on the law to ensure that their relationship with their grandchildren remains intact.

In Ontario, grandparents have not always been granted clear rights when it comes to contact with their grandchildren. Today, grandparents have the right to argue for parenting time with their grandchildren. It is important to note that while grandparents now have the legal right to seek parenting time with their grandchildren, the avenue that they use to access these rights will depend on whether the child’s parents were married or not prior to separation, or if the parents are married and do not intend to separate.

It is important to note that parenting time is always the right of the child, not of the grandparent, and the governing principle will always be that the best interests of the child shall prevail.

A Grandparent’s Parenting Time When the Parents Are Divorced or Getting Divorced

A grandparent’s rights with respect to a child whose parents are divorced or are seeking a divorce, comes from the Divorce Act. The Divorce Act permits non-parents, such as grandparents, to apply for parenting time with a child.

It is important to note that if a proceeding concerning the child is already before the court, a grandparent, or any other non-parent, would need leave (permission) from the court in order to commence an application for parenting time.

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.

It will be important for a grandparent to establish the close relationship that they had with their grandchild prior to becoming estranged to show that a continued relationship would be in the child’s best interests. This type of application should not be brought to create a relationship, in the case where no prior relationship exists.

When considering whether to order parenting time to grandparents, the court will take the following points into consideration when determining whether it is in the best interests of the child (section 16(3) of the Divorce Act)

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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
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 cooperate, in particular with one another, on matters affecting the child;
10. any family violence and its impact on, among other things,
    1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    2. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
    3. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

A Grandparent’s Right to Parenting Time Under the Children’s Law Reform Act (When the Parents Were Never Married, or if the Parents Are Married and There is No Pending Divorce)

The Children’s Law Reform Act should be relied upon when the parents of the child were either never married but have separated, or if the parents are married and there is no pending divorce. Bill 34 (section 21(1) of the Children’s Law Reform Act) introduced the law around grandparents having the right to make an argument for parenting time with their grandchildren. Section 21 (1) of the Children’s Law Reform Act states:

A parent of a child, or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child

Like the Divorce Act, the courts discretion when it comes to parenting time between a grandchild and their grandparent centers on the best interests of the child.

The following factors will be relevant when the court is considering whether it is in the child’s best interest to order parenting time with their grandparent (Section 24(3)):

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,
    1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    2. 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
    3. any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

If you are a grandparent and would like to continue a relationship with your grandchild, our team of experienced family law lawyers can assist you. On the other hand, if you are a parent who is concerned about your child’s relationship with their grandparent, our lawyers can discuss your options and advocate for you.