“The Applicant Grandmother’s claim is grounded in s. 21(3) of the Children’s Law Reform Act, which provides that any person, including a grandparent, may apply to a court for a contact order with respect to a child. “Contact” is defined as “the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time”.
Section 24 of the CLRA directs the Court, when considering or making a contact order, to consider only the best interests of the child. In doing so, the Court is to consider all factors relating to the circumstances of the child, but to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Section 24(3) enumerates several other factors that Courts should consider when assessing the best interests of a child. The significance and weight placed on any given factor varies from case to case, as each case turns on its own particular facts. The only issue is the best interests of the child in the context of those particular facts: Gordon v. Goetz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
In Chapman v. Chapman, the Court of Appeal for Ontario recognized parental autonomy to make decisions in the best interests of their children in the following terms:
In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them: 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 at para 21. [Emphasis added]
The Court of Appeal also recognized that loving and nurturing relationships with extended family members are generally important to children because they serve to enhance the emotional well-being of children. As such, where those relationships are interfered with arbitrarily, Courts may intervene to ensure the continuity of the relationships.
In Torabi v. Patterson, Justice Marvin Kurz summarized the factors to be considered by the Court when assessing whether the relationship between a child and a relative seeking contact is a positive one as follows:
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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: 2016 ONCJ 210 at para 74.”
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