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Nicholas v Herdman, 2015 Carswell 9262 (Ont SCJ)

In this high conflict case, the grandparents sought access to their granddaughter after a falling out with her parents.


The Applicant maternal grandparents applied for an access Order to their two year old granddaughter, M. They requested a schedule that included M being in their care for significant portions of the week. The parents refused to allow the grandmother access but would permit the grandfather supervised access.

In her affidavit, the grandmother claims that because M’s parents could not afford daycare, she and her husband regular provided care for the child since she was born. As such, M had a loving a close relationship with her parents and extended family early in her life.

The grandparents never approved of the Respondent mother’s relationship with her husband. The already strained relationship between the mother and her parents was exacerbated by an argument over the Respondents’ decision to move to another community. As a result, M’s parents severed the applicants’ access to her.

With respect to the severance of access, the parties’ affidavits conflict each other.

The grandparents claim this severance was arbitrary, not in M’s best interests, and would be detrimental to her.

The parents assert that they are protecting M from the grandmother’s manipulative and controlling behavior which the mother suffered for years and the grandparents’ increasingly erratic, unstable, and emotionally damaging behaviour. The parents claimed they felt especially uncomfortable leaving M in the applicants’ care given the grandmother’s inappropriate behavior the night of the argument where she was aggressive, belligerent and intoxicated.


Section 21 of the Children’s Law Reform Act (CLRA) permits for ‘a parent of a child or any other person’ to ‘apply to the court for an order respecting custody of or access to the child.’ Custody of or access to a child must be determined on the basis of the best interests of the child in accordance with s. 24(1).

The Ontario Court of Appeal in Chapman v Chapman noted that parental autonomy to making decisions and judgements on their children’s behalf should be respected absent any evidence that their behavior demonstrates an inability to act in their children’s best interests. According to Chapman, a court should generally defer to the parent’s decision about grandparent access unless all three of the following questions are answered in the affirmative:

    1. Does a positive grandparent-grandchild relationship already exist?
    2. Has the parent’s decision imperiled the positive grandparent-grandchild relationship?
    3. Has the parent acted arbitrarily?

Positive Grandparent-grandchild relationship

Based on extensive third party evidence from extended family, the Court found that a positive relationship between M and her grandparents existed as they were actively involved in her care.

Impact of Parents’ decision on positive grandparent-grandchild relationship

There is no doubt that the parent’s decision has imperiled the relationship between M and her grandparents. The child was accustomed to seeing and going activities with her grandmother five days a week for several months of her young life. Additionally, the stipulation that supervision is necessary for the grandfather to see M where none was previously required has a significant impact on the grandfather-granddaughter relationship and the frequency of contact.

Whether the parents acted arbitrarily

It was clear that, since M’s birth, the mother had a desire for her parents to be a part of her child’s life. However, within a few months, the parents began feeling that the grandparents were being controlling and manipulative of their parenting, M’s care, activities, and her relationship with other extended family members. As such, the parent’s decision to terminate access was not arbitrary and isolated action. It was the result of long term conflict which finally came to a head.

M’s parents are both capable and loving parents to her. They made their decisions regarding access and the relocation with their child’s best interests at the forefront of their minds. They had genuine longstanding concerns about the grandparents’ attempts to diminish their parenting role and the impact on M’s life.

With the grandparents essentially requesting joint custody, the Court suspected they were placing themselves above M’s best interests. Their actions and demands further disregarded the parent’s autonomy and right to make care decisions regarding M, leaving the Court with the impression that the grandparents sought to assert control over their daughter’s family.

As per Chapman, the Court will respect parental autonomy to make decisions and judgements about their child, unless there is evidence of their behaviour demonstrating an inability to act in accordance with the child’s best interests. With no such evidence presented, the Court dismissed the grandparents’ motion for access.