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Parents typically have the final say over what is best for their children. This parental authority includes the decision-making power over with whom their children connect and spend time and where and with whom they live. As a result, a parent has the right to choose whether grandparents should spend time with their children. Because of this, some grandparents don’t have ongoing relationships with their grandchildren.
Many grandparents in a position where they are not permitted to visit with their grandchildren ask what legal choices they have if their attempts to see their grandchildren are thwarted by the parent, current or former in-laws, or any other guardian.
Fortunately, Ontario law provides relief to grandparents hoping to visit with their grandchildren. Both the Federal Divorce Act and the Provincial Children’s Law Reform Act (the “CLRA”) allow grandparents in Ontario to seek a contact order from the court to be able to see their grandchildren. Most grandparents who want to see and visit their grandchildren will need to obtain a contact order under the provisions of the CLRA legislation since the former requires a court order for relief.
However, it should be noted that grandparents seeking to overrule a parent’s objection to their involvement in their children’s lives face an uphill battle as the presiding sentiment is that doing so would undermine parental autonomy – something which should be protected. However, the courts recognize the competing interest of fostering a child’s relationships with extended family. Because of these competing values, it is usually only in cases where a grandparent can establish that their relationship (prior to being thwarted) was unusually strong – typically because the child spent considerable amounts of time with the grandparent prior to the commencement of the court proceeding.
What are the rights of a grandparent under the Divorce Act?
In order for a grandparent to seek a contact order, under the Divorce Act, the mother and father of the grandchildren must be in a legally recognized marriage or have been previously married.
The Divorce Act permits grandparents to petition the court for a contact order if the parents object to the grandparents’ request to visit with the grandchildren and if their sole desire is to see the grandchildren. The court may approve the application, and the grandparents may be entitled to spend more time with their grandchildren if the court finds that doing so would be in the grandchildren’s best interests. When making such a determination, the court will consider the grandchildren’s physical and emotional well-being and their safety and social well-being.
For instance, the court will examine whether:
- the grandparent has behaved in the best interest of their grandchildren;
- the grandparent is making unreasonable requests for contact;
- the grandparent and the child have a strong, healthy bond;
- the grandparent has ever looked after the child in question;
- in the past, the child had previously resided with the grandparent; and
- the grandparent is likely to take good care of or have a positive influence on their grandchild’s life.
Children’s Law Reform Act and the Grandfathers’ and Grandmothers’ Rights
The Children’s Law Reform Act applies if the child’s parents were never married or chose to separate rather than divorce. A grandparent now has the right to file a claim for visitation (contact order) during a dispute over parenting time, thanks to the enactment of Section 21(1) of the CLRA.
A grandparent is not required to seek authorization from the court before filing for enforcement of their rights under this Act. As part of the application process, applicants will be required to submit an affidavit outlining their anticipated childcare and parenting plans, any participation in family proceedings, and any other relevant information.
If a grandparent wishes to be given decision-making authority over a grandchild, two extra steps must be taken that are not required of parents. A current background check on criminal history is needed. Additionally, as per the Child and Family Services Act, grandparents may also need to contact the CAS (Children’s Aid Society) to see whether the agency has any open files on the grandkids. If there is a history with CAS, the information on when they were opened and closed is vital to the grandparents’ case.
The Bottom Line
In general, the courts in Canada are hesitant to take a child away from their parents or to overrule parental judgments regarding their children’s best interests. A grandparent will only be successful in gaining parenting time, decision-making authority, or contact with their grandchildren under exceptional circumstances. For example, when both parents are deemed “unfit” to parent the children, or when one parent is deceased and doing so would ensure the children maintain contact with the deceased parents’ family, the court may grant grandparents’ parental rights.
If you are seeking to re-establish a relationship with your grandchildren against the wishes of their parent or guardian, call the lawyers at Gelman & Associates to discuss your rights as grandparents. Gelman & Associates takes the time to listen attentively to our clients’ concerns in order to provide exceptional legal counsel and the best possible result. Our lawyers will provide strong and reliable leadership on your rough road to justice. Don’t hesitate to contact us if you have any questions or issues. The firm maintains six offices in Barrie, Aurora, Downtown Toronto, Scarborough, Mississauga, and North York, where you may meet with one of our outstanding family law lawyers. Call 416-736-0200 to schedule a free consultation.