Understanding Grandparents' Rights in Family Law

Grandparents have a special place in the family dynamic.  They’ve the fierce love of a parent but the wisdom of added years of experience.  In the life of a grandchild, this love and wisdom can be crucial as the guardians of future generations.  How does the law recognize and acknowledge this special relationship?  What can they do when the bond between parents and grandparents breaks down? 

Grandparents' Rights & Parenting Time: 

Under the Children's Law Reform Act, grandparents have the right to request access to their grandchildren during custody disputes when the parents are not married or have separated. However, if the parents get divorced, the Divorce Act takes over, and the grandparents' rights become more limited. The Divorce Act allows a court to grant parenting time to grandparents, but they do not have an automatic right to ask for it. Instead, grandparents must apply to the court for permission. The court will then decide whether granting access is in the child's best interests, just as it does under the Children's Law Reform Act.

In considering the best interests of the child under the Children’s Law Reform Act or the Divorce Act, the court may consider the following issues and more: 

1. The age and stage of development of the child(ren).  For example, is the child at an age where they are old enough to have made significant lasting bonds with their grandparent? 
2. The willingness of the grandparent to develop or maintain a child's relationship with their family.  You may consider where one grandparent provides a supporting role that strengthens family relationships, contrasted with a parent that isolates a child from their cultural and historical family roots. 
3. The strength and the situation of the child's relationship with their grandparent, as well as what role that grandparent has played in the life of the child.  Is this a situation where a grandparent has played a pivotal role in caring for the child up until they were denied access? 
4. Who and how the child has been cared for up until that point.  You may seek to establish chronologically who’s been the child’s primary caregivers and what that care may have looked like over the years. 
5. The views as well as the preferences, if it may be reasonable ascertained, of that child.  You would look to a Voice of the Child report or a s.112 investigation where a trained professional could provide insight into the children’s preferences for the court in a manner that does not situationally place the child at the heart of the conflict.  A judicial interview is also an option. 
6. Can the grandparent meet the needs of that child and are they willing to do so? 
7. What are the future plans that are currently in place to address caring for the child?  For example, is the child on a daycare registration list or have they applied to advanced schooling? 
8. Has there been any violence in the household?  What is the impact on the child?  Is it appropriate to make an order that will require a party to cooperate on matters impacting the child or would that place them in a position to collaborate with their abuser? 
9. Is there any overlap in criminal or civil court that would be relevant to the child’s care? 
10. What is the child’s religious, spiritual, cultural, linguistic and other family heritage or cultural upbringing? 
11. Do the parents wish for the child to have a relationship with the grandparent? 
    
    

A Parent's Right: 

A parent can deny grandparents parenting time if there is a valid reason. In Giasante v. DiChiara [2005] O.T.C. 658 (SC), the court established a three-part test:

1. Is there a positive relationship between the child and the grandparent?
2. Has the parent’s decision harmed that positive relationship?
3. Did the parent act without reason or on a personal whim?

If the court finds that the parent acted without a reasonable basis and is hindering a positive relationship, it may intervene.

Grandparents' Rights & Custody: 

In some situations, like where parents are abusive towards the child, parents are not fit to care for the child or where the parents are deceased; the grandparent may even file an application for full custody of their grandchild rather than just for parenting time.  To explore this further we suggest seeking a legal consult with a qualified family law legal professional. 

During a legal consult, our family lawyers will be able to better advise you if your facts are appropriate for proceeding with an application for parenting time or custody, and some of the anticipated costs for doing so.  In this way, you can be better informed as to your rights and options before taking those next steps. We are here for you!