Do Grandparents Have A Legal Right of Contact With Their Grandchildren?
The Children's Law Reform Act defines "contact" as "the time a child spends in the care of a person other than the child's parents, whether or not the child is physically with the person during that time" (Section 18(1)).
In Ontario, although grandparents do not have an automatic legal right to have contact with their grandchildren, they do have the right to make an application for contact. Section 21(3) of the Children's Law Reform Act states that "any person other than the parent of a child, including a grandparent, may apply to a court for a contact order with respect to the child". The legislation clearly identifies grandparents as persons who may apply for a contact order from the Court.
What Factors Will the Court Consider?
The factors that a Court will consider in determining whether, and to what extent, to grant an order for contact between grandparents and grandchildren arise from both the legislation and the case law.
Legislation
The extensive list of best interest factors set out in Section 24 of the Children's Law Reform Act must underpin the decision of a Court to make any parenting or contact orders. Grandparents who seek a contact order must establish that contact is in the child's best interests.
Case Law
Over time, the courts have developed a legal test to determine whether to grant a contact order over the objection of a parent. Considerable weight is given to a parent's wishes in determining what, if any, contact grandparents may have with the child. However, deference is only given when the parent's decision is reasonable and in the child's best interests (FS v NJ and TS, 2024 ONCJ 199).
The Superior Court of Justice held, in the case of Giansante v DiChiara [2005] OJ No 3184 (SCJ) that generally, the Court should give deference to a parent's decision regarding the child's contact with grandparents, unless the following three questions are answered in the affirmative:
- Does a positive grandparent-grandchild relationship already exist?
- Does the parent's decision imperil this relationship?
- Has the parent acted arbitrarily?
In Torabi v Patterson, 2016 ONCJ 210, Justice Kurz re-formulated these Giansante factors as follows:
- First, determine whether the Court should defer to the decision of the parent(s). That decision involves the consideration of the three-part Giansante test. Less deference may be owed when one of the parents has died, meaning that the child may lose a relationship with the other side of his family;
- Second, and only if the Court refuses to defer to the parent(s), determine whether in the view of the Court, contact is in the best interests of the child. In that case, reference must be made to the criteria in Section 24 of the Children's Law Reform Act.
In Ninkovic v Utjesinovic, 2019 ONSC 558, the Court held that at this second stage of the test (the best interests stage), an important consideration in determining whether grandparent contact is in the child's best interests is the extent to which this would cause anxiety and stress for the parent, which in turn could have a negative impact on the child. Animosity does not necessarily prevent a contact order, but it is a factor that a Court may need to consider.
In 2024, the Ontario Court of Appeal formalized a two-part test to determine contact cases:
Step One: The three Giansante questions are the first part of the test to determine if the Court will defer to the parent's decision.
Step Two: If the Court determines that it will not defer to the parent's wishes, the second part of the test requires the Court to undertake a best interests analysis taking into account many factors including: the nature and strength of the child's relationship with the grandparent and the history of the child's care; the child's needs; the grandparent's ability and willingness to meet the child's needs; the grandparent's ability and willingness to cooperate with the child's parent and other caregivers; the child's cultural, linguistic, and religious upbringing, and any criminal proceeding, order, condition or measure relevant to the safety of the child.
FS v NJ and TS, 2024 ONCJ 199.
In Torabi v Patterson, 2016 ONCJ 210, Justice Kurz summarized the following elements, which are required to establish a "positive" relationship between a relative and child:
- There must generally be a substantial pre-existing relationship between the relative and the child. Strong loving and nurturing ties must exist between them based on 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. If relations between the parties are too poisoned, 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 relative; and
- A fourth factor may apply in the exceptional circumstance of a young child who has a lost a parent. In that event, existence of a strong, pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.
However, in Kirshenblatt v Kirshenblatt, 2024 ONSC 2896, the Superior Court of Justice held that there may be "exceptions" to the rule requiring a pre-existing positive relationship. In fact, the Court reiterated that there may be situations where a court might intervene despite the absence of a pre-existing positive grandparent-grandchild relationship.
Does the Loss of a Parent Impact the Court's Decision?
The Court has held that deference to a parent's decision can be tempered by the court's willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. In the cases, best interest factors that should be considered may include that a child can know their deceased parent, including their personality, heritage, and culture, through the grandparents. (FS v NJ and TS, 2024 ONCJ 199).
Conclusion
The issue of grandparent contact is a nuanced, fact-specific one that requires a solid understanding of the law as it has developed over time.
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.