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THE GRANDPARENT TRAP: Grandparents’ Right of Access

Unfortunately, many grandparents in Ontario have been estranged from their grandchildren.
When attempts to arrange visits through children, in-laws and former in-laws fail, many of these grandparents surely question what, if any, legal recourse they may have.

In Ontario, grandparents may apply to the courts for access to their grandchildren under either the Divorce Act or the Children’s Law Reform Act (“CLRA”). As leave of the court is required to seek relief under the former statute, most grandparents seeking access rely on the provisions of the latter.

Pursuant to section 21 of the CLRA, 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.” The merits of such an application are ultimately determined based on the best interests of the child.
This includes a consideration of the love, affection and emotional ties between the child and the applicant.

The courts have developed two competing approaches to resolving grandparents’ access claims
under the CLRA. The first relies on the principle that parents should have the freedom and
autonomy to decide how to raise the children; the second encourages the fostering of
relationships with extended family, sometimes even over the objections of the parents.
The leading case on the matter of grandparental access, Chapman v Chapman [2001] OJ No 705 (CA), establishes parental autonomy as the dominant rule driving court decisions in this area. It concludes that, absent evidence that parents have an inability to act in accordance with their children’s best interests, parents generally have the right to determine who their children associate with. There is, after all, no automatic right of access to third parties under the law, and care must be taken not to unduly interfere with parents’ upbringing of their children.

A diverging body of case law, however, supports the ‘pro-contact’ approach, and reflects the
commonly held assumption that contact with grandparents is generally in children’s best interests and should occur unless parents can offer compelling reasons as to why it should not.

In most successful claims for grandparent access, the grandparent(s) established that the
relationship was stronger than an occasional pleasant experience for the child and worthy of
preservation. Typically, this is evident in cases where the child either lived or spent considerable time with the grandparents prior to the commencement of court proceedings. Another line of cases where courts have more willingly ordered access to grandparents is where a parent is deceased, and the access is required to ensure that the child maintains contact with the deceased parent’s family.

In any event, when grandparents are seeking access, the onus is on them to establish that it’s in the child’s best interest to have such a relationship. Grandparents are otherwise, in the eyes of the court, legal strangers with no special interest status in custody and access proceedings.