Growing up, I was (and still am) extremely close with my grandparents. I spent entire summers living with them as a child; and later, lived with them during my last two years of law school. I’m sure many grandparents would be surprised, as my grandparents surely would be, to learn that following a separation and/or divorce, they would not necessarily have an automatic right of access to their grandchildren.
The law allows a parent or “any other person” (e.g. a grandparent) to apply to the court for an order regarding custody or access.
While the law recognizes that it is usually a benefit to a child to have access to his or her grandparents and extended family, generally speaking, grandparents do not have an automatic right to access to their grandchildren, nor do they have an automatic right to maintain an ongoing relationship with their grandchildren. In most cases, grandparents are viewed as “legal strangers” and are expected to establish and maintain a relationship with their grandchildren through their own child. If their own child refuses to allow them access, the grandparent must prove to a court that access is in the children’s “best interest”.
The law places the responsibility on grandparents to prove that access with their grandchildren is in the children’s best interests – it is not for the parent to establish otherwise. If the parent objects to any access between grandparents and the grandchildren, a court will be reluctant to grant access. This is because courts are hesitant to interfere with a custodial parent’s decision unless it is in the children’s best interests to do so. Where there is a high level of conflict between the grandparents and the child’s custodial parent, a court will rarely decide that the child’s best interests will be served by granting access to the grandparents.
While there are no iron-clad rules to establish what is in a child’s best interests, Ontario legislation provides the following non-exhaustive list of factors for a court to consider:
- The love, affection, and emotional ties between the child and the person claiming access to the child, other family members who live with the child, and people involved in the child’s upbringing;
- The child’s views and preferences, if they can be determined;
- The length of time the child has lived in a stable home environment;
- The ability of each person applying for access to provide the child with guidance and education, and the necessities of life;
- Any plans for the child’s upbringing and care;
- The stability of the family unit;
- The ability for the persons applying for access to act as a parent; and
- The relationship by blood or adoption between the child and the persons applying for access.
- Further, in the circumstance where a grandparent has acted as the primary care-giver to their grandchildren for a significant period of time, a court might be willing to grant access to the grandparent(s) e.g. every second weekend.
Thus grandparents must establish that access to them is in a child’s best interests, which requires consideration of numerous factors.
The above information is simply a general overview of the law and is not meant to be relied upon as legal advice. Those thinking about applying for access should consult a lawyer and speak about the specific facts of their case.