Grandparent-Grandchild Access: A Legal Analysis


Intact Families in Which Access Was Denied

The courts have often treated claims for access by grandparents differently when the family is intact from when it is not.  The Chapman case involved an intact family, and the Ontario Court of Appeal left the decision about the frequency and nature of access to the parents who, the court presumed, will make that determination based on the best interests of the children:

The appeal is allowed, the order of Ingram J. is set aside, and the application for access is dismissed.  This does not mean that the grandmother will be unable to have access; it means that the nature and frequency of the access will be at the discretion of the parents who, it is assumed, will make that determination based on the best interest of the children.[63]

Bala and Jaremko, in a forthcoming article, comment on Chapman:

This decision and other judgments demonstrate a reluctance of judges to legally intrude on the intact families.  The courts are reluctant to give grandparents the legal right to make claims against their own adult children in situations where the child’s biological natural parents continue to reside together with the child.[64]

In Nielson v. Kroetsch, the maternal grandparents disapproved of their son-in-law and the mother perceived this attitude as a threat to her efforts to stabilize her marriage.  In discussing the grandparents’ access application, the court held:

Attendances on the children over the objections of the parents also send a message to the children that their parents’ direction is not worthy of respect and obedience; indeed, that it is subservient to the desires of their grandparents.  That is a message that these children cannot afford.  It undermines the authority of their parents at a time when the family unit is already fragile.[65]

In Rice v. Rice,[66] the paternal grandparents of a 10-month-old boy had not seen their grandchild for about five months because of strained relations with their son and daughter-in-law.  The grandparents’ application for access was opposed by the parents.  The court stated that the grandfather, in particular, had to accept that the parents were adults and that he had to respect the rights of those adults to make their own decisions, to live their own lives and to raise their own children.  The court further stated that the child should grow up without feeling any tension or hostility between his parents and his grandfather.  He should not be exposed to any criticism of either of his parents by the grandfather, since such criticism could unfairly and unnecessarily undermine the boy’s sense of security in his parents’ care and would not be in his best interests.

In Lusher v. Lusher, the paternal grandmother had a very controlling relationship with her son and she intruded in his marriage and child rearing.  In determining that there should be no access by the grandmother, Justice Main commented:

It is unfortunate that he will not have a chance to develop a relationship at this time with his paternal grandmother, particularly since his maternal grandmother is deceased.  However, on balance, his emotional health and the stability of his nuclear family are much more important considerations.[67]

In Morecraft v. Morecraft, the parents married when the mother was pregnant with their first child.  The paternal grandparents were against the marriage as they were of the view that the child was not their son’s.  They believed that their daughter-in-law was not good enough for their son and tried to undermine the marriage.  In rejecting the access application, the court observed that "under the circumstances, granting access to the Applicant would be tantamount to dropping a puck between two warring teams."[68]  The court further held that:

Great weight must be given to the wishes of the custodial parents and care must be taken not to unduly interfere with the parents’ inherent right to determine the course of their child’s upbringing.[69]

A significant decision that followed Chapman is Blium v. Blium,[70] in which the Superior Court of Justice (Family Court) of Ontario rendered summary judgment on a claim for access by the grandparents against their son and daughter-in-law.  The case involved triplet boys who were six years of age at the time of the hearing.  The parents did not oppose access but wished to maintain decision-making authority about the frequency and circumstances of the access.  Justice Rogers was critical of the grandparents’ behaviour, their use of five different lawyers and multiple court appearances without any resolution.

At the parents’ urging, the court found that there was no dispute about the respondents’ parenting abilities.  The court held that:

The parents do not and have not disputed the right of the grandparents to have access.  They only wish to decide when and under what circumstances.  The Court of Appeal has recently dealt with this very issue in the case of Chapman v. Chapman, which was rendered March 2, 2001.  The court says in paragraph 21:

"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."

In the case at bar there is no factual disagreement about the devotion and skills of the parents.  They are committed to the welfare of the children and such caring shows in the well adjusted happy product.  They are acting in their children’s best interest and show every promise of continuing to do so.  The respondent parents therefore fit within the factual criteria as set out in the Chapman case.  There is nothing to try on the facts as laid out in Chapman.[71]

The court went on to conclude that the parents:

…seek the right to make decisions about how often and under what circumstances the grandparents see the children.  This is the ratio in the Chapman case.  The parents wish the same outcome as the Court of Appeal ordered.

There is therefore no genuine issue for trial.  The court orders that the grandparents shall have access.  The nature and frequency shall be at the discretion of the parents.  If the parents decide at times during this access order that such access should be supervised, then the access centre shall take direction from the parents as to the frequency and duration.[72]

Blium v. Blium was appealed to the Ontario Divisional Court and unanimously dismissed without written reasons.[73]

Intact Families in Which Access Was Granted

There are also cases in which the courts grant access in intact family situations.  In Chabot v. Halliday,[74] the paternal grandmother applied for access to two very young children.  The access application was opposed by the children’s parents, although the assessment report recommended that the grandmother have access.  The court held that the poor relationship between the grandmother and her son and daughter-in-law was not, in itself, sufficient to deny access.

In Cole v. Nevill,[75] the mother, and the father (who was in the armed services and absent from home for extended periods) felt it was their exclusive right to care for their two children.  The maternal grandmother was granted overnight access once per month, as the court concluded that the parents’ denial was not based on the best interests of their children but rather on their desire to exert control over the grandmother.

Single-Parent Families in Which Access Was Granted

The more typical grandparent access claim occurs where the parents no longer cohabit, one of them is deceased or mentally ill, or one of the parents remarries and the stepparent adopts the children.  In these instances, the courts appear to be more willing to grant access to grandparents, particularly when there is no contact between the non-custodial parent and the children and the court hopes to provide the children with the purported benefits of the extended family.

In Barr v. Gattinger,[76] the grandparents sought access to their grandson.  The mother opposed the access, claiming that the grandparents should exercise access during the father’s visitation periods.  Except for the father, who resided in Alberta, all the other parties resided in Saskatchewan.  The court allowed the grandparents’ application, holding that the grandparents were responsible individuals who had a genuine affection for their grandson and that it was in the child’s best interests to have a relationship with all his grandparents.  As the father did not live in Saskatchewan, it was inappropriate to link his access to that of the paternal grandparents.

In White v. Mathews,[77] the paternal grandparents were granted limited access to their two‑year‑old grandchild.  The grandparents had had frequent visits until the child was 16‑months‑old, at which time the mother terminated contact through a custody order with no access to the father.  The court noted that the grandparents neither condoned nor assisted in the father’s disruptive conduct.  The court found that the grandparents were not attempting to raise the child nor interfere with the mother’s role as a parent.  The child had a very positive relationship with the grandparents.  Moreover, in this case the child was black while the mother and her fiancé were white.  The court held that it was important for the child to have contact with the grandparents to provide a connection to the child’s black heritage.

In McLellan v. Glidden,[78] the maternal grandparents had a good relationship with their five‑year‑old grandchild and his parents.  Following the mother’s sudden death, the child continued to visit the grandparents regularly until the father and his new wife ended the visits, claiming that they upset the child.  The court ordered access for the grandparents, holding that it would be in the child’s best interests to restore the strong bond that had developed.

In DeBruyn v. Turner,[79] a grandmother and mother had jointly been the child’s caregiver.  The court granted access to the grandmother, finding that she did not have an improper motive in bringing her application.

In Gallant v. Jackson,[80] the parties had lived separate and apart under the same roof for two years.  During that time, the paternal grandparents cared for the two children of the marriage while the parents were at work.  Both parties applied for custody and the grandparents applied for access.  The court acknowledged the attachment the children had to the grandparents and ordered that when the mother was not available on weekdays, the grandparents were to have access.

In Deshane v. Perry,[81] the maternal grandmother had cared for the youngest child when the mother disappeared, and had thwarted the father’s efforts to find the child while in her care.  The father, who was now in a common-law-relationship, was granted custody, and the grandmother received liberal access to the youngest child in light of the fact that she was the child’s psychological mother and there was a strong bond between them.

In Fleming v. Fleming,[82] the father had custody of the child and both the mother and maternal grandmother had access.  The mother was often late for her visits and combative towards the father and his new partner.  As a result, the father applied to the court to terminate the mother’s access, even though the child still wished to see her, and terminated the grandmother’s access.  The court held that it was inappropriate for the father to cut off the grandmother’s access.  Access was, therefore, allowed to continue under the supervision of the grandmother.  If the mother failed to make herself available, the visit would go ahead between the grandmother and the child.

In Ruth v. Young,[83] the parents entered into a consent order regarding custody and access of their children, that granted the father two days of access per week.  The paternal grandparents applied for an order granting them access.  The mother objected to the order on the basis that the grandparents could see the children during the father’s access time and because she did not have a good relationship with the grandmother.  The court held that the inclusion of the grandparents access during the father’s access time would not detract from the father’s ability to establish a bond with the children.  In addition, an order for some access by the grandparents, independent of the father’s access, was deemed appropriate and in the best interests of the children.  Accordingly, the grandparents were granted one visitation day per month.

Single-Parent Families in Which Access Was Denied

The case law is also replete with decisions that respect single parents’ decisions regarding access.  Unless a parent’s decision is based on unreasonable concerns, the court’s tendency is increasingly to respect the autonomy of that parent to make the decision.  There is often stated legal recognition that parents are presumed to act in the best interests of their children.[84]  Accordingly, parents are usually accorded the right to determine with whom their children will associate.  This is especially so when there is acrimony between the grandparents and one or both parents.

In Wylde v. Wylde,[85] the court held that the mother was fully competent to determine what was in her children’s best interests.  There was nothing to suggest that the court should interfere with her decision to deny access to the grandmother, who had virtually no relationship with the children and had not seen them at all for four years prior to the application.

In B. (M.) v. W. (C.),[86] the mother died and the maternal grandparents blamed the father for her death.  When the father remarried, the maternal grandmother made a number of inappropriate comments about the stepmother to her grandsons.  The children were very uncomfortable with these comments.  In denying access to the maternal grandparents, the court considered the wishes of the boys, the reasonableness of the father’s refusal to allow grandparents access, the agenda of the grandparents and the level of hostility between the father and the grandparents.

In Hooper v. Hooper,[87] the paternal grandparents applied for access when the father died.  However, even before the father’s death, these grandparents had continuously undermined the mother’s authority and respect the children had for her.  As a result, the mother deliberately interfered with the grandparents’ access after the father’s death.  The relationship between the mother and the grandparents consisted of bitterness and fighting.  The grandparents’ application for access was dismissed as it was held not to be in the best interests of the children to place them in the middle of this conflict.

In Cormier v. Cormier,[88] the court found that it would not be in the best interests of the children to allow access to the paternal grandparents.  The parents had an acrimonious relationship, as did the mother and the grandparents.  As a result of actions taken by the grandparents against the mother, the older child (age 11) did not wish to visit with his grandparents and the younger child (age 9) did not want to see the grandparents without his sibling.

In Hafer v. Stewart,[89] the child had resided with her father until his death at which time the mother assumed custody.  The Manitoba Court of Appeal dismissed the paternal grandparents’ access application, stating that visitation would not be in the child’s best interests and could even cause her harm given the child’s emotional problems, her lack of a close relationship with the grandparents, as well as the acrimony between the grandparents and the mother.

In Greber v. Moskowitz,[90] a grandmother who saw her grandchildren almost daily applied for access to them following her daughter’s death and her son-in-law’s subsequent refusal to allow visitation.  The court denied access, stating that, although the grandmother was genuinely concerned about the welfare of the children and wished to establish a meaningful relationship with them, the animosity between the parties was such that it would undermine and endanger the stability that the children enjoyed with their father and might disturb the children emotionally.

In the British Columbia case of G. (M.L.) v. G. (K.L.),[91] the paternal siblings and grandparents brought separate actions for access against the mother.  The cases were all dismissed, as there was evidence the grandfather had sexually assaulted the child.  The conduct of the applicants was deemed outrageous as they had only brought the actions to clear the grandfather’s name.  On appeal, access was again denied, since the hostility between the parties had not abated and, in fact, had increased during the appeal period.  The B.C. Court of Appeal held that the access was to remain at the discretion of the mother after a one-year cooling off period.  Justice Finch, writing for the majority, wrote:

I would observe that in this case no party seeking access is a parent of J.’s.  Acrimony between a custodial parent and someone seeking access to the child is a factor to consider when looking at the child’s best interests.  When the person seeking access is another parent, bad feelings, hostility, or personal enmity between the parents would be expected to derive from a continued relationship with both parents.

However, in a case such as this, where those seeking access are not parents, acrimony between the parties may be a more important factor in deciding how the child’s best interests are to be served and protected.  The more distant the connection between the child and the person seeking access, the more importance I would accord to hostility between the parties as a factor in deciding whether access is in the child’s best interests.[92]

The case law above seems to suggest that the courts may use their jurisdiction to maintain existing relationships between grandparents and grandchildren when the acrimony between the parents and grandparents is not so strong as to place the children in an untenable position.  However, the courts are unlikely to create or establish relationships when none previously existed, against the wishes of a parent.[93]