Grandparents’ Rights to See their Grandchildren
With today’s modern families in which more often than not both parents work full time and the children are involved in numerous extracurricular activities, the role of grandparents has expanded significantly. When there is a separation, it is not rare that one set of grandparents will face a significant reduction in their access to their grandchildren or, even worst, be denied access to them. This leads to extremely sad situations, as grandparents are seldom prepared to initiate court proceedings to gain access rights.
Contrary to the province of Quebec, where grandparents’ rights to have access to their children is clearly set out in the Quebec Civil Code, in Ontario (and most other Canadian provinces) grandparents get no such special legal treatment. The Ontario Court of Appeal in the well-known case of Chapman v. Chapman has made it very clear that “in the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often and under what circumstances they see them.”
Courts which have allowed a grandparents’ request for access to their grandchildren have done so based on the grandparents having been able to demonstrate that:
- there was a positive and pre-existing relationship between the grandparents and the grandchild;
- the parent’s decision to deny access had imperilled that positive grandparent-grandchild relationship;
- the parent’s decision to deny access was arbitrary or, in other words, was not made to safeguard the child’s best interest but rather for other, self-serving reasons.
The impact of the law suit on the children cannot be ignored. Not only can the lawsuit be costly to the family, and emotionally draining for all, it might include the children being exposed to animosity between their parents and their grandparents.
These are very sad cases and are seldom resolved by litigation. Mediation (for willing parents) or therapeutic intervention is often the only answer to these tragic situations.