Wednesday, December 21, 2016

New Ontario Law Assists Grandparents Seeking Custody and Access With Grandchildren

Garry Wise amd Simran Bakshi
Typically, grandparents have access visits with their grandchildren during the time allotted to the children's parents. 

What happens to grandparental access, however, where a parent does not seek access entitlements, does not reside in the jurisdiction to exercise access, or is otherwise estranged from the child's grandparents? 

The sad reality in such circumstances is that often the once-cherished relationship between grandparents and grandchildren can become distant and estranged.  In many cases, this is a bad development for grandparents and grandchildren alike.

The legitimate concerns that many grandparents have about access to their grandchildren were recently brought to the forefront with Ontario Bill 34, also known as the Children's Law Reform Amendment Act (Relationship with Grandparents), 2016.

This Bill, which has now been enacted as law, effective early December, provides for the entitlements of grandparents to be formally recognized in the statute by virtue of the following additions to the CLRA:
Application for custody or access 
21. (1) A parent of a child or any other person "including a grandparent" may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.  R.S.O. 1990, c. C.12, s. 21.
Merits of application for custody or access 
24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).  2006, c. 1, s. 3 (1).
Best Interests of child
24 (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, "including a parent or grandparent" entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
It should be noted that the CLRA has always permitted Ontario grandparents to seek court orders for access or custody. Though “grandparents” were not expressly referred to in the relevant provisions of the statute prior to the amendments to the Act, the CLRA nonetheless permitted “any other person” to apply for an Order respecting custody of or access to the child, if it would serve in the child’s best interests having regard for “the love, affection and emotional ties between the child” and the applicant.

Historically, however, the Courts have been reluctant to order independent grandparental access, especially in the high-conflict family circumstances in which many access applications by grandparents have typically been brought.

The purpose of amending the CLRA is to provide legislative support to grandparents seeking visiting rights from the family courts. During the third reading of the Bill, its purpose was eloquently described by Ontario Attorney General Yasir Naqvi, as follows:
Speaker, from the beginning when we started the debate on this bill, our government was clear that we supported the ability of grandparents to seek assistance from the Family Courts in cases where they have been unfairly denied access visits to their grandchildren. At the same time, we wanted to ensure that any decision about access to a child will continue to be made in the child’s best interests. The law must always focus on the needs of children. That was the approach we took to this bill. I know that every member of this Legislature agrees with that statement. 
To provide some background to all members, under Ontario’s Children’s Law Reform Act, a grandparent already has the ability to obtain an order for access to their grandchild if it is found to be in the child’s best interest. Under the current law, our courts must consider the “love, affection and emotional ties” between a child and any person who is applying for custody or access. This includes grandparents in any instance where the child’s grandparents are an active part of the child’s life. I want to stress that particular point. So this is not an entirely new concept. It does already exist in law. 
This bill is about supporting the ability of grandparents to seek assistance from the Family Court and ensuring that any decision about access to a child will continue to be made in the child’s best interests. We have always supported this bill’s purpose because, Speaker, it would be a shame if a loving and caring grandparent was not able to have access to their grandchild. We want to ensure that in these cases, we are facilitating this relationship that is focused on supporting the best interests of children.  
The reality is, while in many cases grandparents play a necessary and positive role in the lives of children, there are circumstances where it is not practical or appropriate to extend this legal authority. That is why, Speaker, we put forward an amendment at committee that would make it clear that grandparents have the ability to seek a court order for access to their grandchild under the Children’s Law Reform Act. At the same time, it would ensure that a court remains focused on determining what arrangement would be in the best interests of the children involved.
This legislative initiative gives Ontario grandparents a stronger legal foothold from which to pursue more regular, protected and guaranteed visitation time with their grandchildren, particularly in situations where contact with grandchildren has been impeded without good reason.  

While it remains to be seen how aggressively Courts will implement the intention of this new law, its enactment is clearly a positive development for the Province's grandparents and grandkids.

- Simran Bakshi, Associate Lawyer Toronto
- Garry J. Wise, Senior Counsel, Toronto

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