“[Grandmother’s] counsel suggested that the recent amendments to the Children’s Law Reform Act in Ontario, in particular the insertion of the word “grandparent” into section 21(1) and section 24(2)(a)(i), fundamentally changed the law on grandparent access in Ontario. Multiple decisions of this court, however, have been clear that the amendments create no new rights or enhanced standing for grandparents. In M.R. v A.L., 2017 ONSC 85, Justice McGee stated that the amendments simply “further articulate the class of persons who may seek an order for custody or access, but do not extend, or give them any special standing.” See para. 34, FN 5. See also Whitteker v. Legue, 2018 ONSC 1557 at para. 15; Capone v. Pirri, 2018 ONSC 6541 at para. 8; Tzvetkova v. Petrova, 2018 ONSC 2899 at para. 4 and Botelho v. De Medeiros, 2017 ONCJ 463 at para. 17.
In the result, notwithstanding the amendments, there is no presumptive legal right of access by grandparents to their grandchildren. The onus remains upon a grandparent seeking access to show that this is in the best interests of the child.
In the oft-quoted case of Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), 2005 CarswellOnt 3290 at para.18, Justice Nelson 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:
a. Does a positive grandparent-grandchild relationship already exist?
b. Has the parent’s decision imperilled the positive grandparent-grandchild relationship? and,
c. Has the parent acted arbitrarily?
In Capone, Justice Jarvis considered what constitutes a “positive relationship” under the first branch of the Giansante test, stating that a positive relationship generally requires “time and depth.” He cited Sproule v. Sproule, 2012 O.J. No. 6423 in which the court stated that:
…to be a positive relationship, there must exist something more than an occasional pleasant experience with the children. 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. See para. 15.
In Capone, Justice Jarvis 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.” The court found in that case that given the young age of the child (six months when the application was heard), it was impossible to determine how positive the relationship between the child and the grandmother was.
In Torabi v. Patterson, 2016 ONCJ 201 at para. 74, Justice Kurz also considered what constitutes a positive relationship setting out a four-part test as follows:
a. There must generally be a substantial pre-existing relationship, with strong, loving, and nurturing ties;
b. The relationship must be constructive for the child in the sense that it is worth preserving. If relations are too poisoned, a previously positive relationship may not be capable of preservation;
c. The determination must include the age of the child and the time since the child last saw the relative; and,
d. 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.”