Recent Amendments to the Children’s Law Reform Act
Ontario recently passed a Bill amending the Children’s Law Reform Act to recognize the special relationship between children and their grandparents. The Bill amends provisions of the CLRA that deal with custody or access matters.
Before the changes, these provisions allowed a parent or “any other person” to apply to a court for an order respecting custody of or access to a child. Now, the sections expressly state that grandparents can apply for custody or access, rather than lumping them in to the category of “any other person”. The amendments also expressly provide that, in determining an application for custody or access, the court must consider the relationship between the child and the grandparent(s).
Historically: Two Different Approaches
There are two different approaches taken by courts in the past when addressing grandparent access. These approaches attempt to strike a balance between promoting relationships that enhance the child’s sense of connectedness and wellbeing, and respecting parental authority to decide who participates in the child’s life.
The parental autonomy approach assumes that as long as the parent is acting reasonably and in the best interests of the child, it is up to the parents to dictate whether and how often the grandparents will have access with the child. This tends to be the more common approach. ·
The pro-contact approach assumes that it is generally in the best interests of the child to encourage contact with the grandparent(s) unless there is a good reason to justify limiting contact.
What have courts decided in the past?
Until case law emerges that interprets the legislative amendments, we are restricted to looking to cases decided under the previous wording for guidance when discussing grandparent access. One leading case, Chapman v Chapman, explores grandparent access in the face of strained relations between the parents, children and grandparents.
The parents in Chapman argued that they should be allowed to decide if and when access with grandparents would occur given the fractured relationship between the children and their grandparents. Following the pro-contact approach, the trial judge awarded grandparent access with optimism that it would help cultivate a relationship between the children and their grandparent(s).
Ultimately, this decision was overturned by the Court of Appeal, which followed the parental autonomy approach. The Court concluded that it was not in the best interests of the children to travel long distances to see a grandparent with whom they had a fractured relationship. Since the family was otherwise well functioning, supportive and acting reasonably, the court deferred to the parent’s judgment with regards to access.
Generally, Chapman highlights the court’s tendency to defer to the parents’ right to make decisions regarding grandparent access so long as they can demonstrate that they are acting reasonably and with consideration of the child’s best interests.
When will a court order access?
To summarize some key principles, access is a right belonging to the child - not the parent, grandparent or other third party seeking to spend time with the child. Accordingly, the best interests of the child will be at the centre of any discussion concerning access.
Courts have ordered access where:
- A parent has passed away and the grandparents are the parents of the deceased
- There is an established relationship between the child and grandparent(s) that is at risk of being interrupted
- The grandparents provide consistency for the child that the parents cannot deliver
- Parents have acted unreasonably or arbitrarily regarding grandparent access
Courts have denied access where:
- Grandparents are seeking to usurp a parent’s role
- There is evidence of the grandparent engaging in misconduct
- Granting access would destabilize the parent-child relationship
What do the amendments mean?
The best interests of the child will continue to prevail. While the intent of these changes was to recognize the special relationship between children and their grandparents, the effect may be more symbolic than practical. Grandparents have always been permitted to apply for custody or access under the “any other person” provisions. The new changes do not automatically grant grandparents standing as a party or relieve them from their burden of proving that access is in the best interests of the child.