A grandparent in Ontario does not have automatic entitlement to contact a grandchild. However, Section 21 of the Children’s Law Reform Act permits any person other than a parent, including a grandparent, to apply to a court.
The terminology changed on March 1, 2021. Custody became decision-making responsibility, the authority to make significant decisions about a child’s health, education, culture, language, religion and spirituality, and significant extracurricular activities. Access became parenting time. Time with a person who is not a parent became contact.
How Foote Law Can Help
Foote Law acts for grandparents and for parents in contact and decision-making applications:
- Assessment of which order and which statute apply and whether leave of the court is required.
- Preparation and filing of the application and the supporting affidavit.
- Assembly of the evidence establishing the relationship with the child.
- Representation at conferences, motions, and hearings.
- Representation of a parent responding to an application for contact.
Foote Law accepts Legal Aid Ontario certificates and Employee Assistance Program referrals. Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139.
Foote Law serves clients in Orangeville, Fergus, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, Centre Wellington, and throughout the Greater Toronto Area, in person and virtually.
Parental Deference
A parent determines who spends time with their child, and the court defers to that determination. An applicant asks the court to displace it.
The Three Questions the Court Asks
At the first stage, before displacing a parent’s determination, the court asks:
- Does a positive and significant relationship already exist between the grandparent and the child?
- Has the parent’s decision imperilled that relationship?
- Has the parent acted arbitrarily?
The relationship in the first question must be substantial and pre-existing. An intention to build a relationship does not satisfy it.
A parent who terminates contact over a dispute with the grandparent may be found to have acted arbitrarily. A parent who terminates contact because the grandparent exposed the child to harm has acted on a concern about the child, and the decision is not arbitrary.
The 2016 amendment that added grandparents expressly to section 21 created no right to contact and no presumption that contact serves a child’s interests. It confirmed that a grandparent may apply.
Reasons Applications Are Refused
An application can fail at either stage:
- The relationship was limited or intermittent. Occasional visits and a role that cannot be documented do not establish the substantial relationship the first question requires.
- The parent’s decision was not arbitrary. Where the parent identifies conduct that affected the child, the court has no arbitrary decision to set aside.
- Safety is an issue. Where the evidence raises concerns about the grandparent’s conduct or household, the primary consideration in section 24(2) governs against contact.
- The child objects. Section 24(3) requires the court to consider the child’s views and preferences, giving due weight to the child’s age and maturity.
Contact can occur without an order. Under section 16.5(4) of the Divorce Act, a court considering a contact order must consider whether contact could otherwise occur, including during the parenting time of another person.
What Serves the Child
At the second stage, section 24(1) provides that the court shall only take into account the best interests of the child.
Section 24(2) directs the court to consider all factors related to the child’s circumstances and to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being.
The factors in section 24(3) include the child’s needs given their age and stage of development, the nature and strength of the child’s relationship with each person involved, the child’s views, and preferences, the child’s cultural, linguistic, religious, and spiritual upbringing, and any family violence.
The Burden and the Evidence
The burden rests on the applicant. A parent is not required to justify a decision to limit contact, and the applicant must establish both that the decision should be displaced and that contact serves the child.
The evidence that discharges it includes:
- A record of time spent with the child, including visits, holidays, and events attended.
- Photographs, messages, cards, and gifts exchanged.
- Evidence of caregiving, including childcare provided, school pickups, and overnight stays.
- The written requests made to the parent for contact and the responses received.
- The reasons the parent gave for terminating contact.
- The names of people who observed the relationship.
Requests made after contact ends are evidence, so they should be made in writing.
Contact or Decision-Making Responsibility
A contact order under section 21(3) of the Children’s Law Reform Act grants time with the child. Section 18(1) defines contact as the time a child spends in the care of a person other than the child’s parents, whether or not the child is physically with that person during that time, so a contact order can provide for telephone and video communication as well as visits.
A parenting order for decision-making responsibility under section 21(2) grants the authority to make significant decisions about the child, and it can provide for the child to live with the grandparent. A grandparent seeks that order in these circumstances:
- Both parents are unable or unwilling to provide appropriate care.
- One parent has died, and the surviving parent cannot provide safe and adequate care.
- The child has lived with the grandparent for a significant period, and that arrangement has become the child’s established home.
- Child protection concerns make parental care unsuitable, and the grandparent is the appropriate alternative caregiver.
Which Statute Governs
The Children’s Law Reform Act governs where the parents were never married, where they are separated without a divorce proceeding, and where they are divorced with nothing before the court.
The Divorce Act governs where a divorce proceeding is underway or the matter is before the court under that Act. A contact order requires leave of the court under section 16.5(3). A parenting order under section 16.1 is available only to a person who is a parent, stands in the place of a parent, or intends to do so, and also requires leave.
When One Parent Has Died
Where the surviving parent is capable of caring for the child, the court defers to that parent’s decisions. The grandparents of the deceased parent acquire no right to contact through that parent’s death, and the three questions apply as they do in any other case.
Where the surviving parent cannot provide safe and adequate care, a grandparent may seek decision-making responsibility.
Mediation
Family mediation allows a grandparent and a parent to reach an arrangement without a court application, with the terms recorded in writing. It can address the frequency of visits, communication between visits, and attendance at events, and the arrangement can be revisited as the child grows.
Denied Contact With a Grandchild?
An application for contact turns on the relationship that already exists, the parent’s reasons for terminating it, and the evidence available to establish both.
Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139.
