Tuesday, January 21, 2020

Grandparental Access and Custody Rights of Extended Family Members

Reprinted from The Lawyer's Daily

As Hillary Clinton famously observed, it takes a village to raise a child.

In many cultures, this philosophy is quite literally represented in the way family units are structured. Parents, children, grandparents, aunts, uncles and even cousins often live together under one roof, with all adults playing an integral role in the upbringing of the children of the home.

Upon a relationship breakdown, the close bonds these children develop with their extended family members are at genuine risk.

Despite this, Canada’s family law continues to reflect the primacy of the nuclear family - parents and children only. This focus detrimentally affects grandparents in particular, many of whom have resided with the family unit and even been de facto primary caregivers of their grandchildren, until the marital or relationship breakdown.

As the Court of Appeal noted in Chapman v Chapman (2001), 2001 CanLII 24015 (ON CA), which remains the leading Ontario decision on grandparental access, the underlying assumption is that parental autonomy and deference is to be maintained, unless a parent behaves in a manner inconsistent with the best interest of the children.

Further, a strong, existing relationship between an extended family member and a child must be demonstrated for access with the extended family members to even be considered.

While this approach might make good sense in the context of a typical nuclear family, it does not necessarily reflect the realities of other types of family units, particularly the joint or combined family.

Canadian law will protect relationships between a child and an extended family member, if that relationship is substantial in nature and, and in the words of the Ontario Court of Appeal, is subject to being “imperilled arbitrarily” by a parent.

Our family courts appear to fall short, however, in failing to apply the best interests test to account for the emotional and cultural significance of extended family, and to prevent the further destabilization a child may suffer on marital or relationship breakdown if their bonds with extended family are not more meaningfully protected.

This is particularly true of extended family that children have resided with.

It has been argued that a parent should have elevated status in assessing best interests. This position was considered by Justice Aston in Vanderhoek v Stark, [1999] O.J. No. 4479. While the Court expressly rejected that there was any legal presumption in favour of a parent in custody cases, it nonetheless stated:

14. … In my view, each advantage that one side can point to is effectively offset by an advantage on the other side. The factor that tips the scales, though not specifically enumerated in section 24(2), is that Mr. Vanderhoek is a parent and the Starks are grandparents.

Though grandparents have always had standing to seek access and/or custody, the Ontario CLRA was recently amended to expressly include grandparents as named persons who may bring such applications, and to require that the nature of their relationship with a grandchild be considered as a factor in determining the best interests of the child.

To many, this was seen to signal a paradigm shift, as a statutory recognition of grandparents’ roles in raising a child.

However, in discussing the significance of these amendments, the Court in Whitteker v Legue, 2018 ONSC 1557 (CanLII) was quick to clarify that the mere fact that grandparents are now specifically referred to in the CLRA does not elevate them to any special status.

“Family” may hold different meaning to each of us, particularly when viewed through a cultural lens. We will need to continue to reconsider whether Canadian law’s focus on the nuclear family comes at the expense of critical, extended familial bonds in differently-constituted families.

This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

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