When parents separate, the focus is often on the role of the parties when it comes to parenting arrangements, decision-making responsibility, and child support obligations. For some families, grandparents play an important role in sharing significant caregiving responsibilities. When these relationships are disrupted by separation, it can leave families wondering what rights grandparents have when it comes to maintaining a relationship with their grandchildren?
Children’s Law Reform Act vs Divorce Act
In Ontario, grandparents have access to legal avenues that allow them to maintain or seek time with their grandchildren post-separation, however, unlike parents, these rights are not automatic. Grandparents’ rights are governed by two pieces of legislation: (1) The Children’s Law Reform Act (CLRA) or (2) The Divorce Act. If the parents of the child were never married, or separating rather than divorcing, the CLRA would apply. If the parents of the child are either seeking (or have already obtained) a divorce, the Divorce Act applies.
With amendments to the CLRA made in 2016, grandparents have been specifically included among those who can make an application for specified time with their grandchildren, or even decision-making responsibility.
With amendments to the Divorce Act made in 2020, grandparents may now apply for parenting orders with leave of the court.
Best Interests of the Child
The governing principle used to evaluate a grandparent’s request for contact or decision-making responsibility remains the ‘best interests’ of the child. When a grandparent applies for a parenting/contact order, the court will consider factors such as:
- The existing relationship between the grandparent and child;
- The child’s views and preferences (depending on age and maturity);
- The history of the grandparents’ involvement and care of the child;
- The child’s cultural and spiritual upbringing;
- Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
- Any family violence; and
- The ability and willingness of each person specified in the parenting order to meet the needs of the child.
When Should Grandparents Seek Legal Help?
Grandparents should consider speaking with a family law lawyer if an existing arrangement breaks down or communication with the parents becomes strained or inconsistent. A previously cooperative arrangement can change quickly after separation or conflict within the family.
Legal advice may also be important in situations where the grandparents have been entirely cut off of contact. This is particularly troubling when grandparents previously enjoyed a close and ongoing relationship with the child.
In more serious situations involving family violence, seeking legal assistance is critical. Safety for the child must come first, and so, obtaining advice on how to best present yourself as a safe and appropriate caregiver may be essential for the child’s well-being.
Conclusion
While Ontario law recognizes the importance of grandparents, their rights are not absolute. If you are a grandparent facing challenges in maintaining a relationship with your grandchild following a separation, it is wise to seek legal advice early. Understanding your legal options can help you make informed decisions on how to best prioritize the well-being of the child and preserve meaningful family connections.
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