Grandparents don’t have automatic right of access to grandchildren

By Tony Poland,  LegalMatters Staff • Grandparents can play a meaningful role in their families’ lives but what happens when parents don’t want them interacting with their children?

While family courts have stated that it can be beneficial for a child to have contact with their grandparents, that doesn’t necessarily mean grandparents have an automatic right to access, says A. Julia P. Tremain, a partner with Waddell Phillips Professional Corporation.

“Grandparents can certainly be considered important members of the family but they do not have the same rights as the child’s parents,” she tells LegalMattersCanada.ca. “Grandparents have the legal right to ask for contact, but they don’t have any automatic rights to that contact.

“They would need to convince a judge that the relationship is in the child’s best interest if a parent denies access,” Tremain adds. “That judge would have to be convinced that there is a reason to override parental autonomy.”

Parents can face issues

She says divorced parents as well as those still in a relationship can face issues when it comes to allowing grandparents to have contact with grandchildren.

“There is obviously a difference between grandparents who want to see the children when the parents are still together versus those who want to see them when the parents have split up because those are quite different situations,” Tremain says.

When parents split up, usually the grandparents on both sides would be able to see the children, she says.

“Presumably each parent will have their parenting time, which would allow their parents to have the opportunity to see their grandchildren,” she explains. “It would be challenging to prevent your ex-partner’s parents from continuing a relationship with your children. You cannot simply reach into the other person’s home and dictate who your kids can and cannot see.”

However, after a marriage or common-law relationship ends, it is not uncommon for someone to raise objections to their child seeing their former partner’s parents, says Tremain.

“Grandparents sometimes get blamed for the breakup of the marriage,” she says. “Someone may feel their former in-laws interfered with the relationship to the point that it ended. That resentment can linger.”

She says parents are typically better able to oppose contact with grandparents if their former spouse is no longer in the picture and has nothing to do with the children.

Would need a good reason to deny access

Still, a parent would need a good reason to deny access to their ex’s grandparents, says Tremain.

“An example would be if a grandparent has mental health issues or addiction problems that are out of control,” she says. “In those circumstances, it is likely both parents would agree that it would be harmful for the child to see that grandparent.”

• When overnight parenting time begins depends on the family
• Effective communication can help a parenting plan run smoothly

In recent years, there has been more of a push to recognize the rights of grandparents to see their grandchildren. However, Tremain says it can be more difficult for grandparents to gain access if the two parents are still together and they object.

She says it is not unusual for parents and grandparents to disagree on how to raise a child, which can lead to grandparents overstepping their bounds.

According to advice website More Than Grand, there are many reasons why grandparents push the boundaries set by the child’s parents:

• They believe it is their job as a grandparent to spoil their grandchildren.
• They don’t respect their son- or daughter-in-law’s child-rearing decisions.
• They feel they have the freedom to act as they please since they are not the primary caregivers for their grandchildren.
• They believe their parenting methods should be good enough for all parents.
• They are baffled by the choices the parents are making.
• They want more time with their grandchildren and believe the parents are being overprotective or not allowing them enough access.

Have the right to ask judge to intervene

Tremain says while parents are within their rights to limit or even deny access to their children, grandparents also have the right under the Children’s Law Reform Act to ask a judge to intervene.

“However, in my experience, judges are reluctant to interfere with parents’ autonomy to make decisions about their offspring when the family is still intact,” she says.

She points to the Ontario Court of Appeal decision in Chapman v. Chapman, considered to be the seminal case regarding grandparent access.

Court heard Larry and Monica Chapman, the parents of two children aged eight and 10, did not oppose access by their grandmother Esther Chapman. However, they took the position that they should determine when and how access should take place.

The grandmother wanted 10 four-and-a-half-hour visits each year while the parents were prepared to offer six four-and-a-half-hour visits.

Writing on behalf of the court in the unanimous decision, Justice Rosalie Silberman Abella stated that she did not doubt that Ester Chapman “loves her grandchildren and, understandably, wants to maintain contact with them.”

‘Needs do not include lengthy, frequent visits’

“Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children,” she wrote. “The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother.

“Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children,” Abella added. “It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents.”

Tremain says while every case is different and is judged on specific facts, it all comes down to what is in the best interest of the child.

“That will always be the basis for a judge’s decision,” she says.