Canada: Grandparents' Custody And Access Claims Enhanced By Amendments To Ontario's Children's Law Reform Act

Last Updated: May 31 2017
Article by Rosemary C. Gallo

Parents' separations can mean difficult transitions for children.  Grandparents very often play a special role in these circumstances, providing their grandchildren with stability and unconditional love when they need it most.  These times of transition, however, can also lead to parents and grandparents becoming estranged from one another, such that grandparents' access to their grandchildren can be abruptly reduced or terminated.  In Ontario alone, an estimated 75,000 grandparents have been denied access to their grandchildren (as reported here).

Recent amendments to the Children's Law Reform Act (the Act), in force since January 1 of this year, may help such grandparents.  Section 21 of the Act has been amended to make specific reference to grandparents as among the parties who can bring an application for custody or access.  Subsection 24(2) , which lists factors used to determine the best interests of the child, has been amended to specifically refer to "a parent or grandparent" as among those whose "love, affection and emotional ties" to the child must be considered.

In context, the amendments are as follows:

Application for custody or access

  1. (1) 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 or determining any aspect of the incidents of custody of the child.  R.S.O. 1990, c. C.12, s. 21; 2016, c. 23, s. 3; 2016, c. 28, s. 1.

Merits of application for custody or access

  1. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).  2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

What's Changed?

The amendments consist of only eight added words – fewer characters than your average tweet.  While hardly revolutionary, some things certainly have changed.

Grandparents were always able to bring applications for custody of, or access to, their grandchildren – they were simply included as "any other person" under section 21.  Likewise, considering the "love, affection and emotional ties between the child" and others, including a grandparent, was always required of judges in determining what custody or access arrangement was in the best interests of the child (section 24).  Now, however, judges must specifically consider these ties between child and parent, and child and grandparent, rather than simply between the child "and those entitled to or claiming custody or access."

In other words, the grandparent-grandchild relationship is now expressly considered as a component of the best interests of the child.  While it is too early to tell whether and how the courts might seize on this amendment, one might expect that, all else being equal, the courts would be more likely to make an order granting access to one's grandchild.  After all, to the extent the grandparents play a positive role in a child's life, it will be difficult to argue that their role should be reduced or halted in the child's best interests.

Parental Autonomy Undermined?

Some of you may be thinking, "Wait, what if the parent has a good reason to keep their kid(s) from their grandparent(s)?  Aren't parents better placed than courts to decide what's best for their kid(s)?"  These and other issues were raised during parliamentary debate.

To be clear, the amendments do not require that grandparents be given access or custody, just that their unique relationship with grandchildren be considered in making those determinations.   Of course, a parent may have a sound, child-focussed rationale for denying grandparents access to the child.  In such a case, it is the best interest of the child (or grandchild) which will determine the outcome.

These amendments, appear to be aimed at cases where grandparents' access is unreasonably withheld.  Consider, for example, loving maternal grandparents, previously heavily involved in a child's life, who are now denied access because the father, who was just awarded sole custody, has decided that it is no longer necessary for them to continue seeing their grandchildren.  In this all too common scenario, the decision to deny access is not based on the child's best interests.  Indeed, it may well be harmful to the child.

This is where the courts have been instructed by Parliament to intervene.  Parental autonomy is important, but the law is clear: the best interests of the child are the courts' predominant concern.  Given these amendments, the grandparents in question may now have a better chance in asking a court to grant them access in the face of the parent's objections.

What happens next?

These amendments will be welcomed by the thousands of grandparents who might find in them some hope of reuniting with their grandchildren.  Some parents may instinctively object to the courts second-guessing their choices, but, as a society, we've long restricted parents behaviour where it is seen to harm their children.  Thanks to these amendments, a judge must now specifically consider a grandparents important role in a child's life.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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