Orangeville: (519) 940 - 8309
Fergus: (519) 772-6139
Fax: (519) 940 - 0526

Grandparents’ Rights

Ontario law gives a grandparent no automatic right to spend time with a grandchild. What it gives is the right to ask a court for that time, and to have the request decided on the child's best interests.

That request is decided in two stages. The court first asks whether it should override the parent's decision about contact at all. Only if it is prepared to do so does it ask whether contact with the grandparent would serve the child.

Foote Law acts for grandparents seeking contact and for parents responding to an application, from its offices in Orangeville and Fergus and throughout Ontario.

⚖   Schedule a Consultation

How Foote Law Can Help

Foote Law acts on grandparent applications at every stage, for either side:

  • Assessing whether an application is available and which statute governs it.
  • Seeking leave of the court where the Divorce Act applies.
  • Preparing and filing the application and the supporting affidavit.
  • Gathering the evidence that establishes the grandparent's relationship with the child.
  • Enforcing a contact order that is not being followed.
  • Representing a parent who is responding to an application.
  • Representing clients at conferences, motions, and trial.

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, Centre Wellington, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, and throughout the Greater Toronto Area, in person and virtually.

What a Grandparent Can Apply For

A grandparent can ask for one of two orders, and they do very different things. One provides time with the child; the other provides authority over the child's upbringing.

Contact Order: A contact order under section 21(3) of the Children's Law Reform Act gives a grandparent time with the child. The Act defines contact as the time a child spends in the care of a person other than a parent, whether or not the child is physically with that person. An order can therefore provide for telephone and video calls as well as in-person visits. A contact order carries no authority over decisions about the child.

Parenting Order for Decision-Making Responsibility: A parenting order under section 21(2) gives a grandparent decision-making responsibility: the authority to make significant decisions about the child's health, education, culture, language, religion, and significant extracurricular activities. This is the order a grandparent seeks when they are raising the child, or intend to.

The law places the care of a child with the parents first. These applications therefore succeed only where parental care is unavailable or unsafe.

Whether Leave Is Required
& Respecting the Parent's Decision

Whether Leave of the Court Is Required

Leave means the court's permission to bring the application at all. Whether a grandparent needs it depends on which statute governs the case.

Children's Law Reform Act: No Leave Required. Section 21 allows any person other than a parent, expressly including a grandparent, to apply directly. This Act governs where no divorce proceeding is underway, including where the parents never married or have separated without divorcing.

Divorce Act: Leave Required. Where the parents are divorcing, the Divorce Act governs and a grandparent must first obtain leave. A contact order requires leave 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 stand in the place of a parent, and that person also requires leave under section 16.1(3).

Respecting the Parent's Decision

A parent decides who spends time with their child, and the court begins by deferring to that decision. Before it will set the decision aside, the court asks three questions:

  • Does a positive and significant relationship already exist between the grandparent and the child?
  • Has the parent's decision put that relationship at risk?
  • Has the parent acted arbitrarily?

The first question carries the most weight. The relationship must be substantial and already established; an intention to build one in the future does not satisfy it.

The third question turns on the parent's reasons. A parent who ends contact because of a personal dispute with the grandparent may be found to have acted arbitrarily. A parent who ends contact because the grandparent exposed the child to harm has acted out of concern for the child, and that decision is not arbitrary.

In 2016, Ontario amended section 21 to name grandparents expressly. The amendment created no right to contact and no presumption in its favour. It confirmed only that a grandparent may apply.

Best Interests, Evidence, Raising the Child
& Enforcement

The Best Interests Test

  • Satisfying the three questions does not win the application. It opens the second stage, where the focus shifts entirely to the child.
  • Section 24(1) of the Children's Law Reform Act directs the court to take into account only the best interests of the child. Section 24(2) requires 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 listed in section 24(3) include the child's needs given their age and stage of development, the nature and strength of the child's relationships with parents, siblings, grandparents, and other important people, the history of the child's care, the child's views and preferences given due weight for their age and maturity, the child's cultural, linguistic, religious, and spiritual upbringing and heritage, and any family violence.
  • Under the Divorce Act, section 16.5(4) adds a further consideration on a contact application: whether contact could otherwise occur, for example during another person's parenting time. Where one parent is willing to bring the child to see the grandparent during their own time, the court may decline to make an order that is not needed.

Why Delay Weakens an Application

  • The first question looks at the relationship as it exists today, not as it once was. A long absence wears that relationship down, especially with a young child.
  • The longer contact has been cut off, the harder it becomes to show the substantial, established relationship the test requires.
  • A grandparent who has been refused contact should obtain legal advice promptly and make every further request to the parent in writing.

What the Evidence Must Show

  • The burden of proof rests on the grandparent. A parent is not required to justify a decision to limit contact.
  • A record of time spent with the child, including visits, holidays, and events attended.
  • Photographs, messages, cards, and gifts exchanged.
  • Evidence of caregiving, such as childcare, school pickups, and overnight stays.
  • Written requests made to the parent, and the responses received.
  • The reasons the parent gave for ending contact.
  • The names of people who observed the relationship first-hand.
  • Requests made after contact ends are evidence in their own right. They show the grandparent's continued commitment and often record the parent's reasons, which is why they should always be made in writing.

When a Grandparent Seeks to Raise the Child

  • 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.
  • The death of a parent does not, on its own, give that parent's own parents a right to contact. The surviving parent's decision is entitled to the same deference, and the same three questions apply.

Enforcing a Contact Order

  • A contact order is binding, and a parent who does not make the child available as ordered is in breach of it.
  • Under section 38(1) of the Children's Law Reform Act, the Ontario Court of Justice may punish wilful contempt of or resistance to its orders under the Act by a fine of up to $5,000, imprisonment of up to 90 days, or both.
  • The court can also vary the order or impose terms that address the parent's conduct. The remedy for a breach is to return to court; a grandparent should not attempt to enforce contact on their own.

Resolving It Without Court

  • Family mediation allows a grandparent and a parent to reach an arrangement without an application, with the terms recorded in writing. Mediation can address how often visits occur, communication between visits, and attendance at school and family events. The arrangement can also be revisited as the child grows.
  • Foote Law offers family mediation. In that role, the firm acts as a neutral mediator rather than as counsel for either party.
  • Foote Law's guide to grandparents' rights in Ontario sets out the statutory provisions in full.

Denied Contact With
a Grandchild?

A grandparent's application turns on the relationship that already exists, the parent's reasons for ending it, and the evidence available to prove both. Because that relationship weakens with time, early legal advice matters.

519-940-8309 Orangeville 519-772-6139 Fergus
Request a Consultation →
The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.