Grandparents often play a vital role in their grandchildren’s lives, offering emotional support, stability, and a connection to family history and culture.
Although grandparents do not have an automatic right to access their grandchildren, there are legal avenues available to seek contact through the courts. At Northern Law, our experienced family lawyers guide grandparents through this process with care and expertise.
The Legislation
In Ontario, grandparents’ rights are primarily governed by two statutes: the Children’s Law Reform Act (CLRA) and the Divorce Act. Understanding which law applies is essential to ensuring the proper procedure is followed.
Children’s Law Reform Act
The Children’s Law Reform Act (CLRA) applies when the children’s parents are not legally married or married couples who are not seeking a divorce.
Under subsections 21(2) and (3) of the CLRA, any person, including grandparents, may apply to a court for contact and decision-making responsibility with respect to the child [1].
Divorce Act
The Divorce Act applies when the children’s parents are divorced or seeking a divorce.
Under section 16.5(1), the court can make an order for contact between any person and a child of the marriage [2]. Unlike the CLRA, an application under the Divorce Act requires leave of the court. To obtain this leave, a grandparent must demonstrate an existing meaningful relationship with the child.
Starting the Process
To commence an application, grandparents must complete a Form 8 Application, specifying the orders sought and providing supporting information to justify the requests. Additionally, a Form 35.1 Affidavit is required. This sworn document details the grandparents’ relationship with the child and outlines a plan for the child’s care and contact.
What Courts Consider
When deciding whether to grant contact, the court’s focus is always on the child’s best interests. Courts generally defer to a parent’s decision regarding grandparent access unless there is evidence that the parent’s decision undermines a positive existing relationship.
In B.F. v A.N. [3], the Ontario Court of Appeal set out a two-part test to determine whether contact should be granted.
Part 1 – Should the Court defer to the decision of the parent(s)?
In Giansante v DiChiara [4], it was set out that deference should be given to a parent’s decision regarding the child’s contact with their grandparents unless it can be shown that a positive grandparent-grandchild relationship already exists, the parent’s decision imperils the relationship, and the parent has acted arbitrarily.
In Torabi v Patterson [5], the required elements to establish a positive relationship with the child were summarized as follows:
- There must generally be a substantial pre-existing relationship between the relative and the child. There must be strong, loving, and nurturing ties between them, with consideration of the time spent together that enhances the emotional well-being of the child;
- The relationship must be a constructive one for the child in the sense that it is worth preserving. It is possible that a previously positive relationship may not be capable of preservation;
- The determination must include consideration of the age of the child and the time since the child last saw the grandparent; and
- In situations where a young child has lost a parent, the existence of a strong, pre-existing relationship may not be necessary.
Part 2 – If the court opts not to defer to the parent’s wishes, what is in the child’s best interests?
If the court decides not to defer to the parent’s wishes, it will then consider whether mandating contact is in the child’s best interests. In doing so, they will consider the following factors:
- History of care of the child.
- Willingness to support the development and maintenance of the child’s relationship with the other parent.
- The nature and strength of the child’s relationship with each parent, sibling, grandparents, and other people who play an important role in their life.
- The child’s needs, given their age and stage of development.
- The child’s views and preferences, giving due weight to the child’s age and maturity.
- Plans for the child’s care.
- The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate with others, on matters affecting the child.
- The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.
- Impact of family violence on:
- the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child, and
- the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.
- Legal proceedings, conditions, or orders that are relevant to the safety, security, and well-being of the child.
- The child’s cultural, linguistic, religious, and spiritual upbringing and heritage.
If the court determines that mandating contact is in the child’s best interests, it will then assess how much contact and what form is appropriate.
Getting Legal Support
Applying for contact or decision-making responsibility for your grandchild is a complex process that can be difficult to navigate. Understanding the nuances of the Divorce Act and CLRA requires professional guidance. Our experienced lawyers at Northern Law can provide you with support throughout the process.
Contact us today: (705) 222-0111 or info@northernlaw.ca.
[1] Subsection 21(2) and (3) of the Children’s Law Reform Act, RSO 1990, c C.12.
[2] Subsection 16.5(1) of the Divorce Act, RSC 1985, c 3 (2nd Supp).
[3] B.F. v. A.N., 2024 ONCA 94.