How Can Grandparents Legally Secure Visitation Rights with Their Grandchildren?

What Rights Do Grandparents Have in Toronto?

It can be challenging to think in legal terms about what rights grandparents may have. Sadly, there are many times when parents separate and divorce, and one parent tries to withhold access to the grandchildren from the grandparents. This can be stressful for grandparents and also for the grandchildren who have previously had those grandparents as an essential part of the foundational years of their lives.

In Ontario, two laws apply to this situation depending on whether the parents have been previously married.

When parents have not married, the Children’s Law Reform Act (CLRA) may apply. This act gives grandparents the ability to request the court to grant them visitation. However, it doesn’t guarantee the court will allow it.

If the parents were married, the Divorce Act applies. Like the CLRA, it allows grandparents to request access to their grandchildren, but it doesn’t guarantee it. Unlike the CLRA, the Divorce Act requires non-parents to obtain the court’s permission first before they can apply for contact time with grandchildren.

What Factors Does the Court Use When Determining if Grandparents May Be Awarded Visitation Rights?

First and foremost, the family courts look at what’s in the child’s best interest. Every decision made by the court is influenced by that. The following factors are considered, too, but usually through the lens of what is best for the child:

• The relationship the child has with the grandparents. If the grandparents have been actively involved in the child’s life and are an essential part of it, the court may consider that the grandparents should continue to be involved. The reverse is also true; if the grandparents don’t have a history of being involved, the court may find that it’s not in the child’s interest to start a relationship while the child’s parents are divorcing.
• The ability of the grandparents to care for the child while visiting.
• The relationship the child has with each parent.
• The child’s age and stage of development. This can include evaluating the child’s need for stability and reliable routines and whether or not the grandparents provide some of that. 
• The child’s current and future needs for care and support. 
• The child’s wishes (depending on the age and maturity level).
• The ability to communicate effectively and calmly between parents and grandparents.
• The upbringing of the child to date, including any cultural and spiritual heritage (which includes Indigenous heritage).
• Whether or not there’s a history or current incidence of family violence that could affect the child. 

If you’re uncertain of your standing with your grandchildren, contact an experienced grandparents’ rights lawyer who understands not only the relevant laws but also your concerns and hopes for the future when drafting an approach to negotiation or court. 

Does a Parent Have the Right to Withhold Visitation from a Grandparent?

The answer to this is: It depends. The bottom line for the court is what’s in the child’s best interests. If a parent can conclusively prove that the child visiting the grandparents would cause the child more harm than good, the court may allow the parent to withhold visitation. However, if the court believes the child would benefit from having their grandparents involved in their life, the court may order the parent to allow visitation.

How Do We Pursue Getting Legal Visitation Rights with Our Grandchild?

The first step is to work with an experienced grandparents’ rights lawyer in Ontario who can review your case and help you understand what might be possible. Obviously, the best course of action would be to come to an agreement with the child’s parents, but that is not always possible. In those cases, the grandparents need to file a contact order with the court requesting visitation. They should be prepared to explain how this is in the child’s best interests and be prepared to counter claims from the parent that the grandparents shouldn’t be allowed visitation.

This can be highly stressful. It’s vital to remain calm when working through this process, but that can be tremendously difficult. Your lawyer can help you through the steps and remind you to remain calm.

Can Grandparents File for Custody of Their Grandchildren in Toronto?

Under many circumstances, grandparents wouldn’t be granted custody of their grandchildren if the only reason is that the grandparents want to. However, there are some situations in which the courts may consider granting them custody.

• Parental violence. Whether the parental violence is directed at the child or between the parents, that environment isn’t conducive to a safe upbringing. This requires proof of the violence and that the grandparents have a relationship with the child.
• Unfit parents. Whether it’s because of addiction, mental health issues, or neglect of the child, there are times when parents can’t manage the requirements of parenting. 
• Death. If the parents pass away, the grandparents may want to legally adopt the grandchildren. 

What Should We Do if We Want to Pursue Getting Legal Visitation with Our Grandchildren?

Call Anthony Family Law as soon as possible at 647-933-2397 to schedule a free consultation. We understand how crucial it is for you to be part of your grandchildren’s lives. We also understand how it can be equally vital for your grandchildren to have you in their lives. Our team of experienced, knowledgeable grandparents’ rights lawyers in Ontario can review your case and help you understand what your rights are and what the legal approach should be to achieve optimal outcomes.