CHILDREN, DIVORCE & GRANDPARENT RIGHTS – by GILLIAN BOOKMAN

Most of us are aware of the negative effects separation and divorce may have on the children of the marriage if the parents do not protect them adequately from the intense emotions wrought from the processes and procedures surrounding the dissolution of a marriage. Another area of collateral damage that is often overlooked involves the children’s grandparents and other extended family members.

What happens when the grandparents’ participation in the lives of their grandchildren is impaired during the separation and divorced period? Do grandparents have any legal rights with respect to access to their grandchildren? How can grandparents ensure that they are still welcome participants in the lives of their grandchildren? These are important questions to address in light of the increased incidence of separation and divorce and the associated redefinition of family to include or exclude extended members.

In Ontario two bills dealing with grandparents’ rights have been proposed in the past five years. Both have received a second reading and been referred to a Standing Committee; neither has received a third reading. Bill 22 proposes to amend the Children’s Law Reform Act (CLRA) by amending section 20 to include a clause that a custodial parent shall not unreasonably place obstacles to personal relations between the child and the grandparents. Bill 48 also proposes to amend the CLRA to include grandparent under section 21 with respect to custody and access claims. This is a clear acknowledgement by the legislature that a problem exists but why is it not finalizing the legislation?

Although grandparents do bring custody claims which may be necessary in fact specific cases involving health, safety and adoption matters, my main focus here is on the access issue.

Often times the grandparents are excluded because they are identified as being on the ex’s side and not capable of distinguishing themselves as autonomous and loving family members to the grandchildren. Perhaps a spouse has never felt comfortable or even liked his or her in-laws and uses the family dissolution as a perfect excuse for eliminating those grandparents from the children’s lives. In these and similar cases, the grandparents can seek a remedy in the courts to try and gain access to the children under s. 21(1) of the CLRA. However, access is not a right accorded to the grandparent and it is often denied. The court will look to see if the child will benefit from the presence of a grandparent in his or her life. Similarly, the court may refuse grandparent access if it determines that the parent denying the access is acting in the best interests of the child. The court has also found that even though the parents were denying access to grandparents out of spite, grandparental access was not warranted since it would be stressful and disruptive to the child.

The courts have granted access to grandparents when the access was seen to be beneficial to the child. This is likely to be the case in the following circumstances: i) where a strong prior relationship between the child and the grandparents existed; ii) the parents had unreasonably terminated access; and, iii) in the event that one of the parents had died.

As it stands now, the Ontario legislature seems reluctant to entrench grandparent’s rights into the legislation governing access and custody. Grandparent access is resolved on a case by case basis and is fact specific.

Although it is understandable that grandparents are likely to support their adult child viewpoint as he or she is separating or divorcing; grandparents are well-advised to stay above the fray and prioritize the best interests of the grandchildren in order to optimize their chances of being welcomed as active participants in the grandchildren’s’ lives.

GILLIAN BOOKMAN, M.S.W., M.B.A., J.D.  is an experienced lawyer at Bookman Law Profession Corp, a boutique family and estate law firm located at Yonge & Davisville in Toronto. Gillian practices in the area of family law and can be reached at [email protected] or by telephone at 416-488-2243

www.bookmanlaw.com