Whether parents are still together or if the parents are separated, grandparents’ rights include the ability to apply for a parenting or contact order under both the Divorce Act and the Children’s Law Reform Act. A parenting order for a grandparent would occur in cases where a parent may not be able to provide proper care to the child. As with any other decision regarding children, courts will consider what is in the child’s best interest before making a parenting or contact order.
What is the difference between contact and parenting orders?
A parenting order includes both parenting time and decision-making authority. Decision-making responsibility is the authority to make important decisions about the child regarding their health, education, culture, language, religion, spirituality, and significant extracurricular activities. Parenting time is being responsible for the child’s care. The child does not need to physically be with the adult for the entire duration. For example, a child may be in school, but it is still accounted for in the parenting time. A contact order is the ability to see the child or specific means to communicate with the child. For example, a grandparent may be able to spend one Saturday afternoon a month with any grandchildren.
What are Grandparents’ rights under the Divorce Act?
For grandparents to be eligible to apply under The Divorce Act, the parents of the grandchildren need to be married or have been married. Grandparents can make a request for contact, parenting time, or decision-making ability under the Divorce Act. For a contact order, a court will consider not only the child’s best interests but also if the contact between a grandchild and grandparent could happen during a parent’s parenting time. When grandparents want to apply for either parenting or contact order, they must first ask for the court’s permission to make their request before making the actual application.
What are Grandparents’ rights under the Children’s Law Reform Act?
In cases where the parents of the grandchildren are unmarried, then grandparent rights come from the Children’s Law Reform Act in Ontario. Under this Act, grandparents are still able to apply for both parenting and contact orders. A grandparent does not need to ask for the court’s permission before applying for an order. However, when they apply, they will need to include an affidavit that includes proposed childcare plans, any previous involvement in a family preceding, and any other information that would help determine that granting the order is in the child’s best interest.
Grandparents need to do two additional steps that a parent does not if a grandparent applies for decision-making responsibility for the child. One, they must include a recent criminal record check. Two, a grandparent also needs to make a request to the children’s aid society to determine if the society has an open file on the grandchildren. If there is a file, they need to get the dates of when the file opened and if it closed, then that date as well.
What are grandparents rights under Chapman v Chapman
In Chapman v Chapman, the Court of Appeal for Ontario considered the issue of grandparents’ rights. The grandmother wanted contact with her grandchildren on her terms, but the relationship with both the parents and grandchildren was not positive. The judge considered the circumstance of significant travel to see the grandmother when the relationship wasn’t positive and found that was not in the children’s best interest. The court said it was positive that the grandmother wanted contact with the grandchildren, but the court went on to rule that a parent’s ability to raise their children their way, “should not be lightly interfered with.” Since there was no evidence that the parents were not acting in the best interests of their children, their decisions should be respected, which meant the court would not rule in favour of specific contact with the grandmother.
This case demonstrates that for a grandparent to successfully have a contact or parenting order put in place, there will need to be a showing that the parent is not acting in the child’s best interest and that it is in the child’s best interest to have a parenting or contact order with the grandparent. The view of the best interest is from the grandchildren’s perspective and not the grandparents’.
What is the Best Interest of the Child Test?
The best interest of the child test is about putting the child first when making any parenting or contact decisions. The test is enumerated in the Divorce Act and the Children’s Law Reform Act. It considers all the circumstances of the child with several specific factors around the child’s physical, emotional, and psychological needs. Some of the detailed elements that may be considered are the:
- child’s needs, given their age and stage of development;
- nature and strength of the child’s relationship with each spouse and other family members;
- willingness of each spouse to support the development and maintenance of the child’s relationship with the other spouse;
- history of care of the child;
- child’s views with an understanding of the child’s age and maturity;
- child’s cultural, linguistic, religious, and spiritual upbringing;
- childcare plans that have been made;
- ability and willingness to care for the child;
- ability and willingness to communicate with the other spouse on matters affecting the child;
- presence of any family violence and the impact the violence has on a person’s ability to care for the child and cooperate on any issues affecting the child; and
- existence of any legal proceeding, order, condition, or order relevant to the child’s safety, security, and well-being.
This list of factors is not exhaustive. Other factors that may affect the child can be considered. These elements are not weighted in a specific manner but are measured based on the unique facts of each case.
Contact Vaughan Family Lawyers for Grandparent Access Rights & Contact Orders
Bortolussi Family Law is an experienced family law firm and we are focused on delivering quality and clarity to all our clients. We can advise you of your legal rights. We are located in Vaughan but help clients all across the Greater Toronto Region. Contact Bortolussi Family Law at 416-987-3300 or online to arrange for a consultation on your family law case.