Grandparent access

March 3, 2017

In Canada, all jurisdictions allow for grandparents to apply to the court for access to their grandchildren. Some provinces specifically recognize grandparents’ right to apply for access to their grandchildren.

In Ontario, section 21 of the Children’s Law Reform Act, R.S.O. 1990 has now been amended to confirm that a parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child (emphasis mine).

Therefore and in so far as grandparents are concerned, this means that in any province in Canada, grandparents can apply to the court for access to their grandchildren, which access may or may not be granted, having regard to the best interests of the grandchildren.

As an aside, the dispute commonly arises when one of the children’s parents has deceased (it can obviously occur in other circumstances; however and for the purposes of this newsletter, I will use this fact scenario). Upon a parent’s death, in this scenario, the surviving parent is refusing to allow access by the parents of his or her deceased partner.

The leading case in Ontario on the issue of grandparental access, is the Ontario Court of Appeal case of Chapman v. Chapman, 15 R.F.L. (5th) 46 (Ont. C.A.)

In Chapman, the Court of Appeal for Ontario contrasted two different approaches to grandparental access. The first approach is “the parental autonomy approach” and the second approach is “the pro contact approach”.

The parental autonomy approach stands for the proposition that a child’s parent is entitled to determine what is in his/her best interests where contact with third parties, including grandparents, is concerned. Therefore, if the surviving parent doesn’t want the children to have contact with their deceased partner’s parents, then there will be no contact.

The pro contact approach, as the name implies, means that there is an assumption that the children should have ongoing contact with persons with whom they have a close relationship, including the grandparents of their deceased father.

The Chapman case found in favour of the parental autonomy approach. The case, however, has been distinguished by many cases. This means that many cases have found that the facts of its particular case are different than the facts of the Chapman decision, resulting in the courts finding in favour of grandparental access in spite of the children’s wishes.

Essentially, the cases that have distinguished the Chapman decision have found that the surviving parent’s wishes regarding the children’s contact with their grandparents, are only one factor to consider in determining what is in the children’s best interests.

To me, this makes perfect sense. Although it is important to consider the surviving parent’s wishes regarding contact with the children’s grandparents, the test regarding access is and remains, what is in the children’s best interests. It requires a case by case analysis, and there should be no general rule in favour of or against access in these circumstances.