“In F.S. v. N.J. and T.S., 2024 ONCJ 199, [2024] O.J. No. 1792, Sherr J. summarized the current state of grandparent contact following a recent decision of the Ontario Court of Appeal.
I agree (and adopt) Sherr J.’s interpretation of the law, as follows:
[68] Grandparents do not have a legal right of contact with their grandchildren. The onus is on the grandparents to show contact is in the children’s best interests. The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent access to a child. See: Chapman v. Chapman, 2001 CanLII 24015 (ONCA).
[69] It is always important to defer to the decisions of parents regarding their children. However, deference is only accorded when those decisions are reasonable, and they are acting in the child’s bests interests. See: McLaughlin v. Huehn, 2004 ONCJ 426; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.
[70] In Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ), the court reviewed the Ontario Court of Appeal’s decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:
One: Does a positive grandparent-grandchild relationship already exist?
Two: Does the parent’s decision imperil this relationship?
Three: Has the parent acted arbitrarily?
[71] The Ontario Court of Appeal in B.F. v. A.N., 2024 ONCA 94 set out that there is now a two-part test to determine contact cases. The three questions posed in Giansante are now the first part of the test to determine if the court will defer to the parent’s wishes.
[72] The court in B.F. stated that if the court determines it will not defer to the parent’s wishes, the second part of the test requires a best interests analysis taking into account many factors, including the following: the nature and strength of the child’s relationship with the grandparent and the history of the child’s care; the child’s needs, her special needs; the grandparent’s willingness and ability to meet the child’s needs; their willingness and ability to co-operate with the child’s parent and other caregivers; the child’s cultural, linguistic, and religious upbringing; and any criminal proceeding, order, condition or measure relevant to the safety of the child.
[73] In Capone v. Pirri, 2018 ONSC 6541, the court considered that to be a positive relationship, there must exist something more than an occasional pleasant experience with the child. The grandparent and grandchild relationship must consist of a close bond with strong emotional ties, deserving of preservation in order to displace the principle of parental autonomy. The court held that the legal threshold of a positive relationship for the court to consider superseding its deference to a parent is “necessarily a high one”.
[74] In Torabi v. Patterson, 2016 ONCJ 210, Justice Marvin Kurz set out the following factors in determining whether the court should defer to the parent’s decision:
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- There must generally be a substantial pre-existing relationship between the relative and child. Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
- That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
- The determination must include consideration of the age of the child and the time since the child last saw the relative.
- A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relative(s) of the lost parent applies for access.
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[75] Acting arbitrarily, under the test set out in Giansante, means to make decisions about contact that are based on considerations other than the best interests of the child. As stated in that case, “this is consistent with section 24(1) of the Act which provides that decisions about access must be based on the best interests of the child.” See: Giansante, paragraph 27.
[76] The determination of whether the parent is acting reasonably in denying contact must be approached from the standpoint of the child’s best interests. See: Arbuzova, supra, par. 26.
[77] In Simmons v. Simmons, 2016 CarswellNS 1017 (NSCA), the court wrote at paragraph 41:
In addition, judicial deference to parental authority can be tempered by the court’s willingness to recognize benefits that extended family bring to a child whose life has been marked by the loss of a parent, such as love, support, and stability. These cases sometimes present best interest factors not apparent in cases with two living parents, including the fact that a child can know his or her deceased parent, including his or her personality, heritage, and culture, through his or her grandparents. See, for example, White v. Matthews, [1997] NS.J. No. 604 (N.S. Fam. Ct.) and Brooks v. Joudrey, 2011 NSFC 5.
[78] In Ninkovic v. Utjesinovic, 2019 ONSC 558, Justice Lene Madsen drew a parallel with the unavailability of a parent who was in jail to a child having lost a parent, in assessing whether the court should defer to a parent’s decision not to permit contact.
[79] Justice Madsen also set out the following factors to consider in engaging with the best interests analysis in the second part of the test at paragraphs 72 to 74 of her decision in Ninkovic:
In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.
See also MacDonald v. MacDonald, CanLII 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.
A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy-handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit.”
Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896 (CanLII) at 142-143