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Grandparents Rights - Custody and Access

Topic: Child Custody. Tags: Children, Custody, Access, grandparents

Leaving aside the modern stereotype of the doting, cookie-baking grandmother whose prime role is to spoil her grandchildren, it is not uncommon for a less warm-and-fuzzy scenario to arise: one in which there is discord between the children’s parents on the one hand, and their grandparents on the other. More to the point, these fractious family law scenarios can degenerate to the point where there is not only a desire by parents to limit grandparental access to the children, but perhaps a desire to cut it off altogether.

In Canada, the law that has developed to address these kinds of circumstances can be summarized as follows:

Access

Unlike access claims between biological parents – where the Courts assume that (absent evidence to the contrary) exposure to both parents is beneficial to children – there is no presumption in Canadian law that access to grandparents will benefit the children.
Indeed, grandparents do not have any stand-alone legal right to have access to their grandchildren at all, and are essentially treated like any other third-party would be.
Still, all Canadian jurisdictions allow grandparents to apply to a court for access, and (as with most matters relating to children’s care and welfare) must establish to the court’s satisfaction that the access is in the children’s “best interests”.
This test requires the court to strike a delicate balance: the determination of whether and to what extent a particular grandparent should have access must be evaluated against the parents’ right to maintain the authority and discretion – right or wrong – to make decisions on behalf of their own children, which may include refusing to allow access in some cases.

Having said that, Canadian courts do currently seem to adopt a more “pro-contact” approach, i.e. one that seems to favour allowing grandparents access unless there is good reason to hold otherwise. On the other hand, only 10 years ago in an Ontario Court of Appeal decision in Chapman v. Chapman, the Court refused to give a loving and devoted grandmother more than 44 hours’ access per year to her grandchildren, in light of their parents’ fractious relationship with her and their stated wish to limit her contact with them. The Court of Appeal found that in that case the parents were clearly attentive to the children’s needs, they had a good handle on what their children's best interests were. More importantly, it confirmed that the parents were ultimately responsible for the children’s welfare and that nor the grandmother – and not even the Court itself, for that matter – had a right to impose what may be a different perception of what was best for the children.

Custody

Even more difficult is the situation in which grandparents are looking to take over full custody, i.e. they hope to persuade a court to override the biological parents’ right to raise their own children. Here are the points to know:

Both Canadian federal divorce law and provincial family law legislation allows for grandparents to apply for custody.
However, once again the courts view applications of this nature as being akin to an application from a total stranger, and use the same “best interests” test.
Furthermore, under contemporary Canadian family law there is no longer any presumption (as there once was) that parents have an automatic right to keep the children unless they are unfit; rather, once again the sole and overriding legal test is whether the children’s best interests are served by granting custody to someone other than the children’s own biological parents.
This “best interests” test takes many factors into account, such as the status quo, the suitability of the proposed plan for the care of the children, the love, affection and emotional bond between the parties, and the children’s own wishes, to name a few.

Clearly, it is impossible to predict the outcome in any particular scenario, but it is important to understand that for both custody and access applications, that the sole guiding factor is the welfare of the children. The situations involving grandparents rights can be vast and complex. We suggest that you contact our office to discuss your specific situation and how the law applies to your case.