Ontario Grandparents’ Rights Lawyers
What Are Grandparents’ Rights in Canada?
Traditionally, grandparents have not been granted clear and specific rights regarding contact in Ontario; but that has changed. Grandparents’ rights are dependant upon whether the matter is governed by the Children’s Law Reform Act or the Divorce Act. The Children’s Law Reform Act applies where the parents of the child were never married or have decided to proceed by way of a separation rather than a divorce while the Divorce Act applies where the parents have already obtained a divorce or are seeking a divorce.
Grandparents’ Rights under the Children’s Law Reform Act
In 2016, the passage of Bill 34 (Section 21(1) of the Children’s Law Reform Act) gave grandparents the right to make an argument for access during custody disputes. The courts must consider grandparents’ rights in these matters, while also ruling in the best interests of the child.
Are you a grandparent looking to fight for your right to custody of or access to your grandchild? An Ontario grandparents’ rights lawyer at Feldstein Family Law Group P.C. can provide the insight you need to make an informed decision about moving forward with a case. There are sensitive and challenging matters from legal and emotional perspectives alike, and we will use our experience and skill to most effectively forward your interests.
Grandparents’ Rights & the Best Interests of the Child
Bill 34 does not automatically grant a grandparent the right to access to a grandchild. It will be in the discretion of the court to determine whether granting access/custody to a grandparent will be in the best interests of the child in question, taking into account the specific circumstances at hand. A family lawyer can effectively present your case to the court to show how granting custody or access can benefit the child.
According to the Children’s Law Reform Act, the following factors must be considered when determining what is in the child’s best interests:
Affection, love, and emotional ties that exist between:
- The child and the party/parties requesting access or custody;
- Other family members currently living with the child; and
- Other people involved in the upbringing and care of the child.
- The preferences of the child if these can be determined.
- How long the child has lived in a stable environment.
Each party’s (parent, grandparent, or other party requesting custody
or access) ability and willingness to provide for the child’s needs
and to act as a parent, including
- Their proposed custody or access plan;
- The stability and permanence of their family unit; and
- Their biological relationship or adoptive relationship with the child
Grandparents’ Rights under the Divorce Act
If the matter is governed by the Divorce Act meaning that the parents have either already divorced or are pursuing a divorce, grandparent rights can be determined by granting parenting-time and decision-making responsibility pursuant to a parenting order or contact pursuant to a contact order. Pursuant to the Divorce Act amendments that came into effect as of July 2020, both spouses, parents and any person currently in or seeking a parental role in the life of a child can apply for a parenting order. However, pursuant to section 16.1(3) of the Divorce Act, non-spouses will have to seek leave of the court to obtain a parenting order. Additionally, section 16.5(1) of the Divorce Act allows courts to make an order providing for contact between that person and a child. In determining whether to make a contact order, the court will consider several factors including whether contact between the person and the child could otherwise occur during one of the spouses parenting time.
As with a parenting order, the governing principle for granting a contact order is a determination of what is in the best interests of the child by referencing the factors set out in section 16(3) of the Divorce Act.
According to the Divorce Act, the following factors must be taken into consideration when determining what it is the child’s best interest
- The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
- The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life
- Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
- The history of the care of the child
- The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
- Any plans for the child’s care
- The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child
- The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child
- Any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child
- Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child
For more guidance and information, call (905) 581-7222.