In an earlier blog post, Samantha Cain commented on the law that is often applied to grandparents who might wish to preserve their relationship with their grandchildren after the grandchildren’s parents have separated. As Samantha indicated, there is no automatic right for grandparents to maintain their relationships with their grandchildren – whether it is before or after their parents’ separation.
The question of whether grandma or grandpa should spend time with Jimmy or Janey almost never comes up when a family is together. They just figure it out. Sometimes the grandparents even live with the family. Other times, a grandparent may be so dysfunctional that both parents agree that they will not allow the children anywhere near the “crazy ol’ coot”.
However the issue arises more frequently and more poignantly after parents separate and grandparents, who had had a perfectly healthy relationship with their grandchild, are suddenly frozen out of a continuing relationship.
Under the current law, grandparent may only advance an access claim if they can demonstrate to the Court that they had a meaningful relationship with their grandchild. If they can satisfy this test then they will have “standing” to bring an access claim.
In Ontario the Courts have, at times, been cautious in awarding grandparents a right of access. The Courts have been concerned about the possible disruptive influence grandparents may have on their grandchildren. On the unspoken theory that “blood is thicker than water” the Courts recognize the risk that grandparents may not be able to “mind their own business” and attempt to influence the affections of their grandchild with respect to the child’s parents. It is not too hard to imagine that the paternal grandparents might wish to bolster their own son’s image in the eyes of their grandchild or diminish the importance of the child’s relationship with their mother.
On the other hand, if grandparents have had a history of “minding their P’s & Q’s” as it relates to their son and daughter-in-law and simply wish to maintain a healthy child-focused relationship with their grandchild then a Court may be more likely to determine that it is the “best interests of the child” that the grandparent-grandchild relationship ought to be maintained.
Recently a Private Member’s Bill, Bill 22, has been introduced in the Ontario Legislature that would grant grandparents automatic standing to bring a court application regarding visitation with their grandchild. The Bill amends the Children’s Law Reform Act. Section 20(2.1) of the Act would require parents to refrain from unreasonably placing obstacles to personal relations between children and their grandparents.
The Bill goes on to indicate that one of the specific factors that a Court is to take into consideration in making a determination that is in the “best interests of the children” will be “the importance of maintaining emotional ties between the child and his or her grandparents”. I think the key word here is “maintaining”. The goal of the Bill is not to create a new relationship for the child but rather to preserve what is already an important relationship.
Another provision of the Bill would require the Court to give effect to the principle that a child should have as much contact with each parent and grandparent as is consistent with the best interests of the child. I am not sure how this provision will be interpreted by the Court. On an initial read, you could argue that parents and grandparents are on an equal footing in terms of how much time they might be entitled to spend with a particular child. There is no mention of a priority being given to the time a parent is to afforded with his or her child in comparison with a grandparent.
While the Bill is not yet law and if it is not passed into law before a provincial election is called it may never become law, the enactment of this Bill may provide some interesting considerations for Courts faced with a grandparent’s application for access to their grandchild.