“The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent access to a child: Chapman v. Chapman, 2001 CanLII 24015 (ON CA), at para. 21. In Giansante v. DiChiara, 2005 CanLII 26446 (Ont. Sup. Ct.) 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:
(1) Does a positive grandparent-grandchild relationship already exist?
(2) Has the parent’s decision imperilled the positive grandparent-grandchild relationship? and
(3) Has the parent acted arbitrarily?
In Torabi v. Patterson, 2016 ONCJ 210 at para. 61, the court re-formulated the Giansante test for grandparent access into a two-part test as follows:
First, the determination of whether the court should defer to the decision of the parent(s). That decision involves the consideration of the three-part test articulated by Nelson J. in Giansante, following Chapman. Less deference may be owed when one of the parents had died, meaning that the child may lose a relationship with the other side of the family.
Second, and only if the court refuses to defer to the parent(s), whether in the view of the court, access is in the best interests of the child. In that case, reference must be made to the criteria found in CLRA section 24(2).
See also Capone v. Pirri, 2018 ONSC 6541 para. 12 in which the court endorses and applies the same two-part formulation; Botelho v. De Medeiros, 2017 ONCJ 463 at paras. 21 – 29.
In a recent decision of Madsen, J., Ninkovic v. Utjesinovic, 2019 ONSC 558, 23 R.F.L. (8th) 172, the law related to grandparent access was reviewed. I find paragraphs 72-74, inclusive, very instructive and applicable to this case, at the second stage of the Torabi 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. [Emphasis Added]”