“Chapman v. Chapman 2001 CanLII 24015 (ON CA), 15 RFL (5th) 46 (Ont. C.A.). Grandparents do not have a legal right of access to grandchildren. The test is always best interests, and the courts will give considerable weight to the wishes of the custodial parent. The onus is on the grandparents to show it is in the children’s best interests. It is not in the best interests of the children to be caught up in a real conflict, however the court must be vigilant to prevent custodial parents from alleging hypothetical conflicts as a basis for denying contact. Where there is real conflict, a child’s best interests will rarely be served by a custody order. Branconnier, 2006 Carswell BC (SC) – the wishes of the parent must not be interfered with absent some evidence of willful disregard for those interest. Great weight must be given to parental autonomy to determine what is best for their children. Morecroft v. Morecroft (1991) 122 NBR (2d) 271 (NBQB).
Justice Nelson set out a three part test in Giansante v. DiChiara 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ):
One: Does a positive grandparent-grandchild relationship already exist?
Two: Does the parent’s decision imperil this relationship?
Three: Has the parent acted arbitrarily? Court sets out that deference to parents may not be as strong when one of the parents has died and that parent’s family seeks access.
In determining whether there was “positive relationship” at all, court summarized the following four elements from case law in Torabi v. Patterson, 2016 ONCJ 210 (CanLII):
| (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 young child has lost parent, existence of strong pre-existing relationship may not be necessary when it is relative of lost parent who applies for access.” |