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Grandparent Rights vs. Parental Autonomy

September 1, 2016

The seminal case regarding grandparent access is Chapman v. Chapman (2001), 15 R.F.L. (5th) 46.   In that case, the Ontario Court of Appeal held that parents’ rights to make decisions and judgments on their children’s behalf, including decisions about access, should be respected, unless the parents have demonstrated an inability to act in accordance with their children’s best interests.

The courts in Canada have recognized that, “in the case of a non-parent, there is no presumption that access is in the best interests of a child” (see Delorme v. Austin 2011 SKQB 233 at paragraph 9).

With respect to the determination of the best interests of the child, and in keeping with the principle enunciated by the Supreme Court of Canada in Gordon v. Goetz, 2 S.C.R. 27, the Ontario Court of Appeal in Chapman was clear that the court must look at “what is in the best interest of the particular child before the court” and not what is best for children in general.   In addition, the issue cannot be looked at from the grandparents’ perspective but is rather solely about the needs and best interests of the children.

Some courts have refined the principle outlined in Chapman, requiring deference to parents’ decisions regarding grandparent access unless it can be established that:

     1) A positive grandparent-grandchild relationship exists;

     2) A parent’s decision has imperilled the positive grandparent-grandchild relationship; and

     3) The parent has acted arbitrarily (See Giansante v. Di Chiara, [2005] O.J. No. 3184).

According to the court in Giansante, “a parent acts arbitrarily when the evidence shows that his or her decisions about access are based on considerations other than the best interests of the child.”

In Parkins v. Burnke, 2006 CarswellOnt 4499, the court provided the following factors which a court would consider as evidence that a parent is not acting in the best interests of the child: “animosity, vindictiveness, hurt feelings, or a vengeful motive.”

If a grandparent can satisfy each of the three elements of the test outlined by Giansante, then the court could order access.  However, grandparents need to think long and hard prior to commencing litigation to enforce access rights.  Taking the parent or parents to court often does irreparable damage to the relationship between the litigants and forces the parties even further apart.  As a result, prior to litigating these cases, parties should attempt to negotiate through counsel and if that does not resolve the issue then alternative dispute resolution mechanisms like mediation and/or arbitration should be considered.

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