“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 contact with a child. See: Chapman v. Chapman, 2001 CanLII 24015 (ONCA). 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 the parents are acting in the child’s bests interests. See: M.M. v. K.M., 2023 ONCJ 314, McLaughlin v. Huehn, 2004 ONCJ 426; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.
In Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ), the court reviewed the 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:
(1) Does a positive grandparent-grandchild relationship already exist?
(2) Does the parent’s decision imperil this relationship?
(3) Has the parent acted arbitrarily?
In determining if there is a “positive relationship”, the case law notes the following:
(a) There must generally be substantial pre-existing relationship between relative and child. Strong loving ties must exist based on time spent with each other.
(b) That relationship must be constructive one for child in sense that it is worth preserving. If relations between parties are too poisoned, previously positive relationship may not be capable of preservation.
(c) This determination must include consideration of child’s age and time since child last saw relative.
(d) If a young child has lost a parent, the existence of strong pre-existing relationship may not be necessary when it is the relative of the lost parent who applies for access.
See: M.M., Ibid.
The Ontario Court of Appeal in Torabi v. Patterson, 2016 ONCJ 210 and 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.
However, “less deference may be owed when one of the parents ha[s] died, meaning that the child may lose a relationship with the other side of the family. See: Torabi, ibid.
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:
(1) The nature and strength of the child’s relationship with the grandparent;
(2) The history of the child’s care;
(3) The child’s needs, including special needs;
(4) the grandparent’s willingness and ability to meet the child’s needs;
(5) their willingness and ability to co-operate with the child’s parent and other caregivers;
(6) the child’s cultural, linguistic, and religious upbringing; and
(7) any criminal proceeding, order, condition or measure relevant to the safety of the child.
In F.S. v. N.J. and T.S., 2024 ONCJ 199, the court considered the date it should determine if a positive grandparent/grandchild already existed. The grandmother had a close relationship with the child while the mother and child lived with her. However, once the mother moved out, the grandmother only saw the child a handful of times. Then the mother cut off the grandmother for a long time before the grandmother started her application for contact.
The court found the appropriate date to determine if there was a positive pre-existing relationship was the date when the mother cut off contact with the grandmother. The court found the relationship was not positive at that time.
This approach was also taken by Justice Andrea Himel in Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896. In Kirshenblatt, Justice Himel also found she could order contact even if the three Giasante questions were not answered in the affirmative.
In Ninkovic v. Utjesinovic, 2019 ONSC 558 Ont. S.C.J., 23 R.F.L. (8th) 172, paragraphs 72-74, inclusive, note the following with respect to the second part of the test:
[72] 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.
[73] 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.
[74] 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.”