Do Grandparents Have The Right to See Their Grandchild under Ontario Law?

October 2, 2023 Plat Simionati

Do Grandparents Have The Right to See Their Grandchild under Ontario Law?

Disclaimer: This article aims to provide educational information surrounding grandparent rights in Ontario. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog. 

Grandparents hold a special place in the lives of their grandchildren. They can be a source of wisdom, support, and love, connecting children to generations past. 

However, family dynamics can sometimes become complex, especially following a divorce or separation. This can lead parents to consider restricting or limiting grandparent contact with grandchildren. Do parents have an inherent right to decide to restrict that contact? Are there any legal principles that give grandparents the right to see their grandchild?

In this article, we will:

  • outline why parents may seek to limit a grandparent’s ability to see their grandchildren;
  • explore the legal framework surrounding grandparents’ rights in Ontario and 
  • discuss the factors courts consider when making decisions.

Applying for Access to a Grandchild under Ontario Family Law

In Ontario, grandparents’ rights are governed by two primary statutes: the Children’s Law Reform Act (CLRA) and the Divorce Act. These laws provide mechanisms for grandparents and other non-parents to seek contact with their grandchildren, but they also emphasize the importance of recognizing how the court’s decisions will affect children.

Ontario’s Children’s Law Reform Act (CLRA) and The Divorce Act 

The CLRA contains provisions that apply to grandparents seeking contact with their grandchildren. Section 21(2) of the CLRA allows any person, including a grandparent, to apply to a court for a parenting order regarding decision-making responsibility for the child. Section 21(3) allows the same for a contact order.

In 2016, an amendment was introduced (Bill 34), which specified that certain sections, such as Section 21(2), grant grandparents the right to seek access to their grandchildren. Many grandparents in Ontario misunderstand this change. Bill 34 does not automatically guarantee you access to a grandchild. 

It simply sets out the guidelines for making any such application for contact. The courts have the right to decide the extent of contact or decision-making responsibility, depending on the best interests of the children. 

Under the Act, a person other than a spouse, which includes grandparents and other extended family members, can seek a contact order for time with their grandchildren. However, to apply for a contact order under the Divorce Act, a grandparent must first seek leave of the court, meaning that a grandparent would need permission from the court to even make an application. That lengthens the process, making it slightly more complex.

Regardless of the law relied upon, the court will prioritize the child. It will focus on their physical, emotional, and psychological safety, security, and well-being. It is important to note that the court will also consider other factors related to the child’s circumstances, such as their age and existing emotional ties between the child and the applicant.

How Grandparent Rights Are Viewed in Different Situations 

There are specific contexts that will impact how the courts view grandparent contact. These include:

When a Grandparent Previously Had Custody 

Grandparents who have served as the primary parent to a child for a period may seek continued involvement in their grandchild’s life if the returning parent attempts to deny such contact. This typically depends on the strength and history of the grandparent-grandchild relationship.

Cases of Family Violence

In situations involving family violence, an abusive parent may encourage contact between the child and grandparents to gain increased parenting time with the child. In this instance, the primary parent may seek to limit access to the child to protect them from harm.

If one parent has passed away

If a parent has passed away, the court will take into account how this changes the family dynamic. The court will consider how the grandchildren’s connection and emotional ties to that side of the family will be impacted if access is denied. 

The Legal Test for Grandparent Access Applications

In many cases involving the rights of grandparents, there are two competing principles to be considered. One is the parent’s right to make decisions when raising their children. However, on the other hand, the courts have recognized the place that grandparents may have in their grandchildren’s lives. It may be in the children’s best interests for that relationship to continue. 

In such cases, the court must delve into a set of guiding principles. These principles were neatly distilled into a practical test by the Ontario Superior Court case – Giansante v. Di Chiara.

In essence, the courts typically uphold parental authority unless the following conditions are met:

  1. Does an already positive and nurturing grandparent-grandchild relationship exist?
  2. Has the parent’s decision put this positive relationship at risk?
  3. Is there evidence that the parents have made an arbitrary decision?

To clarify, a “positive relationship” is more than an occasional visit. It refers to a strong, affectionate, and nurturing connection demonstrated through the time the grandparent and child spend together. This relationship must be deemed worth preserving because it contributes positively to the child’s development, taking into account the child’s age and the last time they interacted with the relative.

Get Practical Legal Advice to Protect Your Legal Rights

In Ontario, grandparents do not have an automatic right to contact with their grandchildren. However, the law recognizes the significance of these relationships and provides a legal framework for addressing access disputes. Ultimately, the courts prioritize the best interests of the child when making decisions about grandparent access, aiming to balance the importance of maintaining these relationships with the child’s safety and well-being. Understanding the legal framework and the factors involved can help you understand your rights and next steps. 

For all of your family law concerns, including custody and access, you want someone well-versed with Ontario family law and how it applies to your unique situation. At Plat SImionati, we practice family law, and we do it well.