Often times family conflict creates situations where grandparents find themselves restricted from visiting with their grandchildren. Grandparents have rights to visit grandchildren in Ontario.
The Grandparent Access Law in Ontario
In Ontario, the Children’s Law Reform Act was amended in 2016 to address concerns that grandparents were being kept away from their grandchildren. Section 21 of this act now reads “a parent of a child or any other person, including a grandparent, may apply to a court for an order respecting… access”
The Court application needs to include an affidavit explaining the previous relationship and how access is in the best interests of the child. A police records check also needs to be filed with a grandparents request.
Section 24 of the same legislation provides some factors the Judge must consider when determining the best interests of the child. Some of the factors relevant to an application by a grandparent include:
- the love, affection and emotional ties between the child and the grandparent;
- the child’s views and preferences, if they can reasonably ascertained;
- the plan proposed by the grandparent; and
- any familial relationship between the child and the grandparent.
The only concern the Court has in making a decision on access is what is in the best interests of the child. There is no requirement for the Court to consider the wants of the grandparents. Simply put, the child’s interests are the only thing that matters.
Parents Rights in Granting Access
The leading decision on this issue is from the Ontario Court of Appeal almost 20 years ago. In that situation, the parents were still together and made an informed decision that they were going to restrict access to the grandmother. The reason to restrict access was because the parents felt that the grandmother was the source of constant interference with the family.
The grandchildren had a negative view of their grandmother, though that may have been created through parental influence. This means that the parents were talking negatively about the grandmother in front of the children.
While the grandmother was successful at trial, the Ontario Court of Appeal overturned the trial decision. The Appeal Court determined that it wasn’t for the courts to try and repair broken relationships. When the parents are making informed decisions about how they wish to raise their children, the courts won’t interfere.
This didn’t mean that the grandmother was not allowed access. Rather it meant that the frequency and duration of access would be decided by the parents and not a Judge.
Grandparents Access After a Separation
It is important to note that this decision was made when the parents and children were all living together, and there wasn’t any evidence of high conflict. In situations after a separation or divorce, often times grandparents can be left out by feuding parents, or caught in the middle of a custody dispute.
If a parent is deliberately restricting access to the grandparents, the reason for that decision must be taken into account. If it is a highly emotional decision that isn’t based on any evidence, then it may be a situation where a Judge may intervene.
Again, it is only the best interests of the child that matter. If a grandparent has demonstrated violence, or has been a negative influence on a child, then that may be sufficient reason to restrict access and would likely be supported by a Judge. Without that tangible evidence, some thought must be given to why the decision to restrict access was made in the first place.
There are also practical considerations. If there is already conflict between a parent and grandparent, further litigation is not going to resolve that conflict. This means that everyone involved should give some thought to how to resolve the conflict. Court needs to be a last resort.
How to Enforce the Rights of Grandparents
Grandparents have rights to visit grandchildren in Ontario. Are you a grandparent who is in a situation where you have been restricted in your access to your grandchildren? Your first step needs to be looking to resolve the issue on your own with the parents. If that is not successful, you may want to obtain some legal advice on potential next steps.
Contact Hearty Law for a virtual consultation to discuss your rights.
Hearty Law serves Toronto, Ottawa and surrounding communities. Email toronto@heartylaw.ca or ottawa@heartylaw.ca for more information.