I am often asked what rights do grandparents have with respect to their grand children. The problem often arises when the parents of the children are going through a rather nasty separation.
When parents separate, custody and access (visitation) of the children is either determined by mutual agreement or by a court order. However, depending on the particular circumstances, custody and access to the children depends on what is in the best interest of the children.
The only province in Canada which has clearly defined rights for grandparents is Newfoundland. A majority of the other provinces, however, only use the "blood relationship" as one factor in determining what is in the best interest of the children. Access is the right of the child and is based on the best interests of the child; regardless of what the grandparents "want".
In Ontario, the governing legislation regarding custody and access is the Children's Law Reform Act. In determining what is in the best interests of a child, the Act requires the court to consider all of the needs and circumstances of a child, including, the love, affection and emotional ties between the child and each person claiming custody, the other members of the child's family who reside with the child, and the persons involved in the care and upbringing of the child. The views and preferences of a child will be considered provided such views can reasonably be ascertained.
The Children's Law Reform Act does not define who can apply for custody or access, rather, it defines it as the "person" who is applying for custody. As such, grandparents can apply for custody and access in Ontario. The courts will use the relevant factors in determining what is in the best interest of the children before making an order for custody or access. Generally speaking, the child's parents will be the courts first choice for custody. However, depending on the circumstances, the courts will award custody and access to persons other than the child's parents.
In a recent case in Ontario, the child's father was not interested in either custody or access to his child, however, the child's grandparents (the father's parents) were very active with the child and applied to the court for access rights. The courts granted the grandparents access rights similar to what the natural father would have received.
If, however, the parents of the child have agreed regarding custody and access, the court will not interfere by granting additional access to the grandparents. It is often assumed that the grandparents will have plenty of time with the children when the children are in the care of their parents. For example, if one parent has access to the children every other weekend, it is assumed that the grandparents will share in that time.
All cases regarding custody and access are very dependant upon the particular circumstances of the case. The bottom line, however, is what is in the best interest of the children.
Walter Drescher is a partner with the law firm of Cobb and Jones. If you have any questions, please direct them to the Simcoe Reformer or consult a lawyer of your choice.