Call Us Now
e-Mail Us Now
In Ontario, as in all of Canada, the bond between a grandparent and grandchild is incredibly important. When family circumstances change, often due to separation, divorce, or other upheavals, grandparents frequently find themselves cut off from the grandchildren they cherish. This sudden separation can be painful, leaving you to wonder about the legal options available to maintain that vital relationship.
We understand this is an emotional and challenging time. While Canadian law does not grant automatic rights to grandparents, it provides a clear legal pathway for you to request a court order for time with your grandchild, known as contact, or for decision-making responsibility (formerly referred to as custody). The entire process pivots on one crucial legal principle: the best interests of the child.
The Legal Framework: Statutes Governing Grandparents’ Applications
In Ontario, two primary pieces of legislation govern family law matters and determine your ability to seek court orders regarding your grandchild. The specific Act that applies depends on whether the child’s parents are married and seeking a divorce.
The Children’s Law Reform Act (CLRA)
The Children’s Law Reform Act, R.S.O. 1990, c. C.12, applies when the child’s parents were never married or were married but are not seeking a divorce.
Under this Act, any person, including a grandparent, may apply to a court for an order respecting contact with the child or for decision-making responsibility. The CLRA was specifically amended in 2016 to better recognize the significance of the grandparent-grandchild relationship better. Specifically, section 21(1) expressly includes grandparents as individuals who can bring an application.
The Divorce Act
If the parents of the grandchild are divorced or in the process of getting a divorce, then the federal Divorce Act applies.
Similar to the CLRA, the Divorce Act allows a non-spouse, like a grandparent, to apply for a Parenting Order or a Contact Order. Crucially, if you are not a spouse, you must first obtain the court’s permission, known as “leave,” before you can proceed with your application. To be granted leave, you must show that you already have a meaningful relationship with the child, which prevents individuals from using court applications to try to create a relationship that does not already exist.
Prioritizing the Child’s Best Interests
Whether your application falls under the CLRA or the Divorce Act, the court’s paramount consideration is always the child’s best interests. The judge will not focus on what is “fair” to you, the grandparent, but solely on what provides the best outcome for your grandchild.
Section 24(2) of the CLRA and similar provisions in the Divorce Act outline factors the court must consider when determining a child’s best interests.
Factors the Ontario Courts Will Consider
- The child’s needs: These needs depend on the child’s age and stage of development, especially their need for stability.
- The nature and strength of the relationship: This involves the ties between the child and each parent, sibling, grandparent, and any other important person in the child’s life.
- The history of care: The court looks at who has historically cared for the child.
- The child’s views and preferences: The court will consider the child’s expressed wishes, giving due weight to their age and maturity.
- Willingness to facilitate contact: The ability and willingness of each person applying for decision-making responsibility to support the child’s relationship with their grandparents, if appropriate.
- Unreasonable barriers: The CLRA also makes it clear that a person with decision-making responsibility should not create or maintain unreasonable barriers to the formation and continuation of a personal relationship between the child and their grandparents.
A strong, positive relationship with your grandchild, and evidence showing that maintaining this relationship benefits the child’s emotional and psychological well-being, is key to a successful application.
Grandparents Seeking Access (Contact)
Most grandparent applications seek contact, the legal term for the right to spend time with a child and communicate with them. To succeed in a contact application, you must demonstrate more than just an existing relationship. You must prove to the court that the parents’ decision to restrict or deny contact is detrimental to the child’s well-being and that the continuation of the grandparent-grandchild bond serves the child’s best interests. The court generally respects the parents’ authority to make decisions about their child unless there is a compelling reason to intervene.
Grandparents Seeking Decision-Making Responsibility (Custody)
It is more difficult for a grandparent to obtain decision-making responsibility (custody) because the law prioritizes parental care. Decision-making responsibility entails having the religious upbringing, and significant extra-curricular activities.
Circumstances Where Decision-Making Responsibility May Be Considered:
- Parental Incapacity: Evidence of chronic substance abuse, severe mental health issues, or an ongoing failure to meet the child’s basic physical and emotional needs.
- Child Safety Concerns: Situations involving family violence, abuse, or neglect that put the child’s safety at risk.
- Parental Death: In the tragic event that both parents have passed away.
Getting Experienced Support for Your Family
Applying for contact or decision-making responsibility as a grandparent is a complex, emotionally taxing process that requires detailed knowledge of Ontario family law. We, at Anthony Family Law, recognize the gravity of this situation and the loving role you play in your grandchild’s life.
Call Anthony Family Law today at 647-933-2397 for a confidential discussion about your rights and your grandchild’s future.
