Grandparent-Grandchild Access: A Legal Analysis

COSTS

The general rule in custody and access cases is that costs should not be awarded against a person who, in good faith, pursues a reasonable claim.[136]  A court may award costs against a party who unreasonably initiates or continues proceedings.[137]

A judge’s jurisdiction to order costs against an unsuccessful party may provide parents, in particular, with some bargaining power or relief when dealing with grandparents who are denied access by the court.  Given the observations of Thompson et al., the threat of a costs award may have a needed ameliorating effect upon grandparents and "level the financial and emotional playing fields."

We can regard grandparent visitation statutes as empowering grandparents in their intergenerational "bargaining in the shadow of the law" with other family members concerning access to grandchildren and other matters.  Indeed one of the intended purposes of these statutes may have been to permit grandparents greater leverage in their negotiations with other family members because their new standing to petition courts for visitation privileges permits the threat of a lawsuit if domestic disputes cannot be resolved satisfactorily.

Grandparents leverage in those situations is likely to be especially influential because the "triggering conditions" underlying their standing to petition the court often render the parent less equipped financially or emotionally for a court battle.[138]

In grandparent access cases, there often is a power imbalance between grandparents and parents due to the relative stages in life of the respective parties.  This was recognized to some degree by the United States Supreme Court in Troxel, which noted that "the litigation costs incurred by Granville in her trip through the Washington court system and to this court are without a doubt already substantial."[139]

In his dissenting opinion, Justice Anthony Kennedy noted with concern the very costly impact of this form of litigation:  "If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s fees alone might destroy her hopes and plans for the child’s future."[140]

In fact, Tommie Granville Wynn created a Web page designed to seek funds to help her and her husband deal with her significant litigation costs.[141]

In Wylde v. Wylde, the court ordered costs against the grandmother and stated:

I am satisfied that the grandmother is in a better position to pay for litigation than the mother.  The mother is not working while the grandmother has retired and undoubtedly has a pension, she owns her property and has no real dependents.  Although there was no evidence that the grandmother is wealthy, I feel she is in a better position to pay for the litigation she commenced.

The court must be careful not to encourage relatively well-off grandparents in retirement using their time and money to pursue grandchildren, except in situations that will benefit children.

Under the circumstances, the mother was successful and can least afford costs.[142]

On the other hand, in Panny v. Gifford, costs were ordered and fixed against a mother who brought unnecessary motions and filed voluminous affidavits.  Although the matter was settled, the court found that:

[The grandparents] were put to considerable expense as a result of how [the mother] approached this litigation….  It is the limited means of [the mother] that saves her from an order that she indemnify the [grandparents] on a solicitor-and-client basis for the costs that they needlessly incurred in this proceeding.[143]

ENFORCEMENT OF GRANDPARENT ACCESS

Encouraging a positive and healthy relationship between grandparents and grandchildren is the goal of any court order made about access.  The purported benefits of knowing your extended family, cultural heritage and roots are the bases upon which such orders are made.  Enforcing these orders and expecting the goodwill needed to properly implement them is, in most cases, quite unrealistic.  The Alberta Provincial Court Act, which deals with grandparent access, includes a penalty provision to respond to orders being breached.[144]

S. 32.1 (7) Any person who contravenes a provision as to right of access in an order made under this section is guilty of an offence and liable to a fine of not more than $1000 or to imprisonment for a term not exceeding 4 months.

Should this section ever need to be relied upon, then it is highly likely that the atmosphere for any semblance of "normal" access would not exist.

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

The decision in Troxel, and other United States cases, regarding non-parent access is largely steeped in American constitutional law.  It is not entirely clear whether in Canada the Charter of Rights and Freedoms[145] applies to private family disputes.  Section 7 of the Charter states:

Section 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In Young v. Young[146] and P. (D.) v. S. (C.),[147] the Supreme Court of Canada was divided on the applicability of the Charter in custody and access matters.  These two cases involved the freedom of religion of non-custodial fathers who, when exercising access to their children, participated in religious practices that were objectionable to the custodial parent.  Three Justices declined to specifically rule on the application of the Charter because "valid orders under the ‘best interests of the child’ standard cannot violate the Charter."[148]  Three other Justices found that the Charter has no application to private disputes between parents, nor to court orders regarding custody and access matters.  Only Justice Sopinka held that the Charter did apply in both cases and that while "the ultimate determination in deciding issues of custody and access is ‘the best interests of the child test’, it must be reconciled with the Canadian Charter of Rights and Freedoms."[149]

Justice Sopinka found that the competing interests could be reconciled by interpreting the best interests test to allow Charter rights, namely freedom of religious expression, to be overridden only when applying the test would result in "more than inconvenience, upset or disruption to the child and incidentally to the custodial parent."[150]

The following year, in 1995, the Supreme Court of Canada in B. (R.) v. Children’s Aid Society of Metropolitan Toronto[151] addressed the applicability of section 7 of the Charter to child protection.  The court was divided on whether parents could avail themselves of constitutional rights under the Charter.  The case involved a premature child who required a blood transfusion but whose parents, being Jehovah’s Witnesses, refused such treatment based on religious grounds.  Justice La Forest, writing on behalf of three other Justices, said that although American constitutional law provided useful guidance on the scope of the liberty interest under the Charter, section 7 does not protect the:

…integrity of the family unit as such.  The Canadian Charter, and s. 7 in particular, protects individuals.  It is the individual’s right to liberty under the Charter with which we are here concerned.  The concept of the integrity of the family unit is itself premised, at least in part, on that of parental liberty.[152]

As Justice La Forest observed, the liberty provision in section 7 must be read in the context of section 1 of the Charter.

Section 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Therefore, whatever the court determines the liberty interest to be in an intrafamilial context, it operates within certain parameters.  Justice La Forest commented:

Freedom of the individual to do what he or she wishes must, in any organized society, be subject to numerous constraints for the common good.  The state undoubtedly has the right to impose many types of restraints on individual behaviour and not all limitations will attract Charter scrutiny.

On the other hand, liberty does not mean mere freedom from physical restraint.  In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

...The right to nurture a child, to care for its development, and to make decisions for it in fundamental matters, such as medical care, are part of the liberty interest of a parent….  The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being….  In recent years, courts have expressed some reluctance to interfere with parental rights and state intervention has been tolerated only where necessity was demonstrated.  This only serves to confirm that the parental interest in bringing up, nurturing, and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society.

...While acknowledging that parents bear responsibilities towards their children, it seems to me that they enjoy correlative rights to exercise them.  The contrary view would not recognize the fundamental importance of choice and personal autonomy in our society….  The state is not actively involved in a number of areas traditionally conceived of as properly belonging to the private sphere.  Nonetheless, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children.  This role translates into a protected sphere of parental decision making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself.  Moreover, individuals have a deep personal interest as parents in fostering the growth of their own children.  This is not to say that the state cannot intervene when it considers it necessary to safeguard the child’s autonomy or health.  But such intervention must be justified.  In other words, parental decision making must receive the protection of the Charter in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter.[153]

In New Brunswick (Minister of Health) v. G. (J.),[154] then Chief Justice Lamer, who in B. (R.) held the liberty provision to not include the right of a parent to raise his or her children free from state interference, now writing for the majority of the court, held that a child protection proceeding is a threat to the "security of the person" of both parent and child.  Justice Lamer held that the protection of the Charter was warranted in circumstances in which a low-income mother was originally denied counsel paid for by the New Brunswick Legal Aid plan when her children were apprehended by child welfare authorities.  The mother’s entitlement to counsel was "in accordance with the principles of fundamental justice." Justice Lamer stated:

The interests at stake in the custody hearing are unquestionably of the highest order.  Few state actions can have a more profound effect on the lives of both parent and child.  Not only is the parent’s right to security of the person at stake, the child’s is as well.  Since the best interests of the child are presumed to be with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship.[155]

In B. (R.) and G. (J.) the court recognized the integrity and importance of the parent-child relationship.  In G. (J.), the majority of the court found that the Charter applied to protect what it considered to be vital issues affecting the relationship between a mother and her three children.

Winnipeg Child and Family Services v. K.L.W. was a case that dealt with the constitutional validity of Manitoba legislation permitting warrantless apprehensions in non-emergency circumstances.  In upholding the legislation’s validity, the entire Supreme Court of Canada found that state intervention must "accord with the principles of fundamental justice" and that any limitations placed on the rights of parents and children to have a relationship with each other will be examined on the basis of whether it promotes the interests of children.  Although dissenting in the result, Madam Justice Arbour held:

The central concerns in the case before us are the parent’s [Charter-protected] interest in raising his or her child free from unwarranted state intrusion and the child’s right to have his or her best interests protected.  However, when they appear to conflict, these interests must be balanced against each other and against the interests of society in the child protection context.

In my view, not only should the Court recognize the child’s interest in being protected from harm, but we must also recognize the interests of a child in being nurtured and brought up by his or her parent.[156]

A child protection proceeding is, of course, inherently different from a custody and access dispute by virtue of the fact that the state, through a child protection agency, has intervened to ensure a child’s well-being.  The evolution of the Supreme Court’s thinking on child protection cases in the last several years has resulted in Charter recognition and protection to preserve, except in cases of parental abuse or neglect, the parent-child relationship, as it is consistent with the best interests of the child.

Until recently, it appeared that the Charter’s purpose was limited to protecting individuals from unwarranted state intervention.  In Dolphin Delivery v. R.W.D.S.U.,[157] the Supreme Court of Canada held that the Charter does not apply to strictly private litigation, which a custody case is, but rather to protection against government action.

The intervention of the state through its child protection authorities is necessary to ensure that a parent’s conduct does not fall below a certain threshold so as to jeopardize the safety and well-being of a child.  As indicated, the application of the Charter to this circumstance appears now to be accepted in Canada.  In these situations, the ability to adequately parent a child is usually at issue.  In a private grandparent access case, the need to protect the sanctity of the parent-child relationship is no less compelling than in a child protection case.  Here, grandparents are attempting to interfere with decisions made by parents, whose competence is not in issue, regarding the people with whom they wish their children to interact.  One might ask whether such a family, however it is constituted, should not in these circumstances be afforded the same protection under the Charter as a family who is subject to child protection proceedings?  The autonomy of a parent to make decisions regarding their children is a value that now appears to attract the scrutiny and protection of the Charter.  In B. (R.), Justice La Forest remarked:

Children undeniably benefit from the Charter most notably in its protection of their rights to life and to the security of their person.  As children are unable to assert these, our society presumes that parents will exercise their freedom of choice in a manner that does not offend the rights of their children.[158]

In F. (N.) v. S. (H.L.), in which a grandmother sought access to her grandchild, the B.C. Court of Appeal made reference to Justice La Forest’s opinion in B. (R.).  Justice Esson strongly agreed that parents’ decisions, outside the context of a child protection case, not be judicially set aside unless there is a compelling reason to do so.  Justice Esson held:

That case, of course, was dealing with state interference with parents in respect of parenting.  But nevertheless, in my view it has substantial application.  It would be equally unacceptable for there to be unrestrained judicial interference with the rights of parents to decide what is in the best interests of their children.[159]

The court seems to be indicating that grandparent access cases may attract Charter protection when a judge inappropriately disregards a competent parent’s decision about what is in his or her child’s best interests and substitutes his or her own determination.

Professor Nicholas Bala, in a recent article, states that:

The Court has acknowledged that "Charter values" may affect how the courts interpret and apply the common law and legislation to private disputes, and further has accepted that legislation that applies to private disputes is a form of "government action" that is subject to Charter scrutiny.[160]

Given Professor Bala’s view, it is likely that legislation such as the Divorce Act and the Children’s Law Reform Act would be subject to Charter scrutiny.  Therefore, the comments of Justice Sopinka in Young that the best interests of the child test, the standard used in both these statutes, must be reconciled with the Charter seems to resonate more in 2001 than in 1994 when Young was decided.

Professor Bala notes, however, that "it is clear that the courts will not allow the Charter to be used in a dispute between parents in a fashion that seems contrary to the best interests of children."[161]

Grandparent access is not a dispute "between parents." However, given the Supreme Court’s acceptance of the best interests test, as evidenced in Young and Gordon v. Goertz,[162] it will be reluctant to apply the Charter in a way that might have adverse consequences for a child.  This may mean that, as Justice McLachlin said in Young, a harm-based analysis should be applied to the best interest test to determine whether potential or actual harm to a child may result if grandparent-grandchild access were denied.

Professor Bala summarizes the constitutional approaches in both the United States and Canada regarding grandparent access and concludes that the Charter may well be applicable now:

The Supreme Court of Canada in Young v. Young and G. (J.), and even more clearly in W. (K.L.), has adopted an approach that tends to use the Charter as a tool for promoting the interest of children, so it seems unlikely that Canadian courts will adopt the type of rhetoric in Troxel in terms of recognizing parental rights, and restricting the scope of "best interests" decision making.  However, there is a strong argument that a grandparent’s request for access is an application for state interference in the family sphere, that there should ordinarily be a strong presumption that a parent, rather than a judge will make decisions about their children.  In the absence of the grandparent having assumed the role of a psychological parent, it is in the long term best interests of both parents and children to avoid having judges making decisions about the extent to which children will see their grandparents.  Judicial interference in this type of decision making can be viewed as a state threat to the constitutionally protected "security of the person" of both children and parents, which can only be justified if it is demonstrably in the best interest of the children.[163]

THE BEST INTERESTS AND HARM TESTS

It is argued by many that the application of a strict best interests of the child test in grandparent access cases is the correct approach, as it ostensibly focusses on the needs of the child and the ability and willingness of the parties to meet those needs.  This standard is so ingrained in family law in Canada that calls to examine its suitability in certain circumstances, despite its vagueness, have received little attention.  Its appropriateness for resolving disputes between parents is not questioned here nor, as was clearly articulated in Gordon v. Goertz,[164] is the role of the courts to adjudicate such intraparental matters using this test.

In the case of Young, which was between two parents, Justice McLachlin included a harm-based analysis as part of the best interests test.  Yet non-parental access claims raise concerns about the best interests test that need study to determine the suitability of its application to non-parental claims.  As indicated, in many instances in Canada a harm-based analysis is used in grandparent access cases under the name of the best interests test.  As many American jurists and scholars have noted, a harm-based analysis is essential to meet U.S. constitutional requirements but also is important on public policy grounds.  Professor Bean commented on the best interests test’s application to grandparent access cases, which purports to be child-centered:

The courts, with encouragement from the legislatures, have defined termination of grandparent contact, or prohibition of it, as harmful to grandchildren.  They have done this by beginning and ending the analysis of court-ordered grandparent visitation with the best interest of the child standard.  This use of the best interest standard fails to recognize that court-ordered third-party visitation is an intrusion upon the constitutional fundamental right of family autonomy.  The vagueness of the standard, in combination with the lack of structured analysis, also invites the courts to focus on the interests of the grandparents as opposed to the interests of the child, when the child’s needs should constitute the sole basis for the intervention and intrusion.  The courts’ erroneous focus results in placing a burden on the parents to justify their use of parental authority.  The result of so using the best interest standard has policy implications which are contrary to our constitutional preference of non-governmental interference in raising children, so long as no harm occurs to the children.[165]

The most appropriate approach may be a type of bifurcated hearing, in which there must be an initial showing that actual or possible harm to a child  would arise from termination of access by a grandparent.  If this harm could be established on the evidence, then the court should move to the second stage of the hearing to determine what, if any, access would be in the best interests of the child.  If no harm were established at the initial stage, then the court should not intrude further into the decision-making authority of the parents and the private realm of their family life.  This analysis was employed in Hawk v. Hawk [166] and in many other cases since, including the Washington Supreme Court’s decision in Troxel,[167] as well as Canadian decisions in D. W. v. M. P.[168] and T. (A.H.) v. P. (E.).[169]

Another good but less desirable two-stage approach, which is not as child-focussed, would be to make an initial inquiry into the fitness and competence of the parents to make decisions regarding their children’s contact with their grandparents, and then enter the second, best-interests-test phase only when the parents are determined not to be fit or competent to make such decisions.  In essence, this is the Chapman approach, which was followed in Blium when the court found the parents to be fit and committed to acting in their children’s best interests.  As such, in the context of Chapman, there was no triable issue.  This approach would not take into account the circumstance in which a grandparent has acted in loco parentis to his or her grandchild and possible harm would result if access were terminated.

A third approach would be to place the onus on grandparents to demonstrate why it is contrary to the best interests of the children for the parents to make the determination regarding access.  This approach is clearly predicated on the presumption that parents act in the best interests of their children.  It would be left to the grandparents to prove otherwise.

A fourth approach would be to assume that the parents’ decision about grandparents having access to the children would prevail unless the grandparents could demonstrate "special and extraordinary" circumstances.  Presumably, special and extraordinary circumstances would include situations in which grandparents have stood in loco parentis.  The general concern about using this approach is the very definition of the terms special and extraordinary.  As can be seen in case law interpretation of both the federal and provincial child support guidelines, the terms invite court intervention for definition as well as a determination of whether, on the facts of each case, the definitional threshold has been met.

A fifth approach would use the current statutory two-stage framework of the Divorce Act.  In order for a person other than a spouse to apply for access to a child, he or she would first require leave of the court to do so.  Ostensibly, the leave application could examine more than simply the actual standing or "connection" of the applicant to the child.  The court at this stage could receive evidence from the applicant grandparent who would have the burden of proving that a cessation of access to his or her grandchild would be harmful or detrimental to the children.  In the event the threshold could be met, then the matter could proceed to determine the issue of access based on the best interests of the child standard.  However, if the evidentiary threshold could not be established then the case would conclude at that point, with the court not granting leave for the grandparent to apply for access to his or her grandchild.

With legislation that does not specifically entitle grandparents to apply for access, such as the Divorce Act, the application for leave provides the opportunity to determine the effect that the cessation of access might have on the child.  As such, it is recommended that the leave application be maintained.

However, greater clarity for judges should be provided by section 16(3) of the Divorce Act, including a provision stating that in the leave application the applicant would have to prove that "harm" or "substantial harm" to the child would likely result from the applicant not being granted an order for custody or access.

The recommended approach regarding the Divorce Act is similar in nature to the preferred first approach mentioned above.  A bifurcated hearing would occur in which there is an initial requirement to show that actual or possible harm to a child would arise from the cessation of access to a grandparent in order for the case to continue and be determined upon the best interests of the child test.  This approach is recommended when legislation does not require leave of the court for grandparents or "other persons" to apply for access.  It is recommended that provincial and territorial legislatures amend their relevant statutes and require this form of bifurcated, child-centred hearing.

The common thread through all these approaches is the assumption that the state should be careful not to tread upon the integrity and autonomy of the nuclear family unit.

THE EVOLVING DEFINITION OF THE FAMILY

As indicated, some of the cases make distinctions between access to grandchildren based on whether the parents are together—an intact family—or separated or in a single parent family.

Whether this distinction has any meaningful application in modern society was considered by the United States Supreme Court in Troxel when Justice O’Connor stated:

The demographic changes of the past century make it difficult to speak of an average American family.  The composition of families varies greatly from household to household.  While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households.[170]

In Roberts v. Ward, the Supreme Court of New Hampshire reflected on the changing nature of family life:

Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families consisting of a married couple and their children.  More varied and complicated family situations arise as divorces and decisions not to marry result in single-parent families; as remarriages create step-families; as some parents abandon their children; as others give them to temporary caretakers; as still others are judged unfit to raise their own children.[171]

The adoption of a harm-based component for determining contact between grandparents and grandchildren necessarily shifts the focus away from the parents’ marital status.  In this context, when a child resides in a loving, stable household it is not relevant to examine whether the parents are married, separated or, for whatever reason, there is only one parent.

The United States Constitution supports the right of parents to raise their children free from state intervention.  In Canada and the United States, the case law also provides parents with this authority.  The focus is on the rights of parents, not just married parents.  In this regard, Professor Joan Bohl commented:

Logically, fit parents are entitled to a right of family autonomy in the context of grandparent visitation law, as in other areas of domestic relations law, regardless of whether they are married, single, widowed or divorced.

... By redefining the intact family to include any stable family unit or to reflect united parental decision-making, courts have essentially shifted the focus of the inquiry to whether the child is at risk of harm.  Clearly when children are part of a stable family unit they are presumptively free of the harm that threatens a child whose custody is at issue.  Similarly, when a child’s parents participate in cooperative decision-making on the child’s behalf, the child enjoys the same protection from harm whether those parents are married or divorced.[172]

In In re Aubin, the dissenting Justice observed in obiter dicta some of the very real and practical situations in which children are raised:

... A review of the record indicates that, chances are, Crystal Aubin will not receive "mother of the year" award.  Neither shall millions of other single mothers who are attempting to care for their children under trying circumstances.  In virtually every parent-child relationship, crystal ball observers can no doubt conjure up more pleasing scenarios, better ways and means of child rearing.  However, real life defies such fairytale perfection.[173]

In Kyle O. v. Donald R. et al.,[174]the Court of Appeal of California, on facts similar to those in the Troxel case, followed the United States Supreme Court decision.  In this case, the mother died and her parents initially sought custody and later access to their eight year-old granddaughter.  The father agreed to visitation but believed he should determine the amount and timing of access.  The court held that:

…as a matter of law, Kimberly’s death did not imbue the grandparents with their daughter’s parental rights or diminish Kyle’s parental rights.  Nothing in the unfortunate circumstances of one biological parent’s death affects the surviving parent’s fundamental right to make parenting decisions concerning their child’s contact with grandparents.[175]

As mentioned, even though a child’s circumstances may, in the view of his or her grandparents, be better made by having contact with them, the courts have usually granted the parents the authority to make this decision.  It seems now that courts may be more willing to consider the various types of family life.

In Wylde v. Wylde, the court acknowledged the "non-traditional family" that existed and the support that it required.  Justice Fisher remarked:

…What interest does the state have in these proceedings?  The state’s interest is the preservation of the welfare of the family and the protection of its members.

Here the mother and her children are the only family unit presently constituted.  Any decision should support that unit as opposed to the grandmother who has lost any consistent or healthy family connections.

Coercive intervention by the state into the lives of parents and their children should not be encouraged unless there is a significant probability that the intervention will be in the child’s best interest.[176]