Hello, I’m Megan Jamieson, an associate with Feldstein Family Law Group.
Today I would like to talk to you about a grandparent’s legal right to have access to their grandchild.
I will begin with a scenario. Imagine that Mark has a great relationship with his grandparents, and he sees them often. He visits them at their home, he has sleepovers, and celebrates family occasions and other holidays with them. Unfortunately, one day one of Mark’s parents has a fight with Mark’s grandparents. Suddenly, Mark’s parents decide it is not a good idea for him to spend so much time with his grandparents. Eventually, his parents decide that Mark shouldn’t be spending any time with them at all. The question is whether Mark’s grandparents have any recourse in law to see their grandchild?
Fortunately, there are a few options available to grandparents, with one caveat, the leading case from the Ontario Court of Appeal on this subject defers decision-making power over grandparent access to the parent of the child, unless 3 factors exist. The three factors are as follows:
- A positive grandparent-and-grandchild relationship already exists;
- The parent’s decision has not imperiled this positive grandparent-and-grandchild relationship; and
- The parent’s decision to restrict access to the grandparent was not arbitrary.
First, what is most important is that Mark had a pre-existing, strong relationship with his grandparents. This is key because family courts have recognized that a pre-existing, positive relationship is oftentimes worth maintaining. The Court has acknowledged that grandparents offer a unique and valuable perspective to children and this is the kind of insight a child will be at risk of losing if the grandparent/grandchild relationship were to be severed.
Second, with respect to whether the parent’s decision to withhold access to a grandparent imperils a positive grandparent-and-grandchild relationship, the Court tends to place focus on the child. Generally, the second and third factors center around what the child stands to lose by being denied contact with his or her grandparents, and whether the decision by the parent to sever the relationship is unwarranted. If the grandparent has maintained a pre-existing relationship with the child, then it is more likely in the child’s best interests to continue a relationship with his grandparents.
However, there are circumstances in which it can be difficult to maintain a close relationship with a grandchild due to physical distance. In these circumstances, it is extremely important that a grandparent maintain a relationship with his or her grandchild through telephone calls, texts, or e-mail. For the court to intervene, this kind of communication will be important because a grandparent must establish that there has been a relationship with the grandchild, which has been wrongfully discontinued.
Ultimately, our legal system does afford grandparents rights to their grandchildren, particularly those grandparents who have played an active role in the lives of their grandchildren.
Thank you for taking the time to listen today. If you require more information with respect to grandparent access and wish to schedule a consultation, please visit our website or contact our office at 905-581-7222.