In Ontario, grandparents face a challenge when they are denied access to their grandchildren.

A new Ontario case Nicholas v. Herdman (2015) is a case in point.

This case mostly affirms the traditional approach of the law to grandparents seeking time with their grandchildren.

Here, their granddaughter was two years old. The parents would not allow any access by the grandmother and only limited, supervised access by the grandfather. The grandparents alleged they had played a close, important role in their grandchilds young life, including caring for her because the parents could not afford childcare. They alleged they had a loving relationship with their granddaughter.

The evidence indicated family stress the grandparents did not care for their daughters new partner. Family conflict abounded, to the point that their daughter severed her relationship with these grandparents (and, therefore, their relationship with their granddaughter).

The affidavit evidence in the case was contradictory. Ultimately the grandparents claimed that their daughter had acted arbitrarily and capriciously, which was not in their granddaughters best interests.

The parents responded by claiming they were protecting the granddaughter from the grandmothers manipulative and controlling behavior, which allegedly had transpired for years before. They also claimed both grandparents behaviour was increasingly erratic, unstable and emotionally damaging to them and the granddaughter.

In short, the allegations exchanged by both sides were hurtful, inflammatory and very contradictory in nature often a challenging exercise to sort through in Family Court.

Grandparent Access Law Generally in Ontario

The starting point: section 21 of Ontarios Childrens Law Reform Act, which provides for a parent of a child or any other person to apply to the court for an order respecting custody of or access to the child. Custody of or access to a child must be determined on the basis of the best interests of the child, pursuant to sub-section 24(1) of that legislation.

The oft-referred to case in Ontario for this area is Chapman v. Chapman, a decision of the Ontario Court of Appeal. Interestingly, this case started in this area initially. In this case, the Court held that that parental autonomy for making decisions for or about children should be respected in the absence of any evidence that the parents conduct an inability to act in the childrens best interests. A Court should generally defer to the parents decisions about grandparent access unless all three of the following tests are met in the circumstances:

a) Is there already a positive grandparent-grandchild relationship?

b) Has the parents decision negatively impacted or imperiled the positive grandparent-grandchild relationship?

c) Has the parent acted arbitrarily?

The Outcome of This Case

Based on third party evidence from extended family members, the Court found that a positive relationship between the granddaughter and her grandparents existed they were actively involved in her care.

The Court also found that the parents conduct imperiled the relationship between the granddaughter and her grandparents. For example, the child had seen her grandmother five days per week for several months of her young life. Whats more, the stipulation that supervision is necessary for the grandfather to see his granddaughter when none was previously required had a significant impact on the grandfather-granddaughter relationship and the frequency of contact.

The Court also held that it was clear since the grandchild had been born that her mother desired for her parents to be a part of her childs life. However, over a period of a few months, the parents began feeling that the grandparents were being controlling and manipulative of their parenting, their care of the granddaughter, her activities and her relationship with other extended family members. Therefore, the Court concluded based on all of the evidence that the parents decision to terminate access was not arbitrary and not a capricious or isolated action. It was, finds the Court, a result of long-term conflict that finally materialized to the point of no return.

The Court also found that the parents were loving, capable and made decisions affecting their daughter in their daughters best interest generally. The Court accepted they had legitimate and genuine issues and concerns, for some time, about the grandparents efforts to diminish them and marginalize their role in their daughters life and upbringing.

Following the Chapman case, this Court gave deference to these parents autonomy to decide if these grandparents should pay a role in their granddaughters life, as there was no evidence satisfying the Court that the grandparents behaviour demonstrated an inability to act in accordance with the child’s best interests. Without that evidence presented by the grandparents, they lost and were granted no parental rights, including no access.

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