Over the years, I have heard many people say that the challenges and struggles of being a parent are finally rewarded when they become a grandparent. Being able to spoil your grandchild with love and affection, not to mention lots of food and other goodies, is part and parcel of the role of the grandparent.
Unfortunately in our modern society when couples with children end their relationships, whether they were dating, in a common-law couple, or they were married, one set of grandparents are often left out in the cold, and are seen as “collateral damage” to the fractured relationship.
Up until a year or so ago, grandparents could apply to the court and it would be a “hit or miss” result in court, depending on which judge you got, as the law relating to grandparent access was not clear. With this in mind, the Government of Ontario addressed the issue in 2021, and a grandparent (or other non-parent) who wishes to have or continue a relationship with their grandchild can now seek a “contact order” under the Children’s Law Reform Act (CLRA).
This blog will deal with the steps that a grandparent (or other non-parent) can take to have or maintain a relationship with someone else’s child, whether the person is a grandmother/grandfather, an aunt/uncle, or a cousin. I will discuss what challenges one may face, the test to overcome, and in doing so, set out the direction in which courts are moving regarding protecting/preserving these extended family relationships.
What is the Law that Governs Contact Orders?
Under section 21(3) of the CLRA, a non-parent can apply for a contact order with respect to a child. This implies that attempts by the non-parent to negotiate terms with the child’s parent or parents, or any other form of alternative dispute resolution (such as the use of mediation or a meeting with professionals) have been or will be futile.
Where to Apply?
If the non-parent wish to apply to the court, they must do so in the jurisdiction in which the child resides, and not in the jurisdiction they reside. This is a common mistake, and one that is usually strenuously argued by the other side at the beginning of the case. If you are not sure which court is the right one, please seek out legal advice before you start the case.
What Needs To be Filed?
There are several forms that you may need to complete:
- Application (Form 8)
- Form 35.1 Parenting Affidavit (you will need to fill out section B as a non-parent)
- Where applicable, you will need to attach proof of your criminal record, whether or not it is related to offences involving children, and whether or not it is current
- Form 35.1A CYFSA Affidavit (you will need to fill out section B as a non-parent only if you have, or have had, any involvement with any child welfare agency, such as the Children’s Aid Society)
It is beyond the scope of this blog to explain the different court forms, but once again, I suggest that you seek legal advice prior to completing the forms, as the statements you make therein need to be as accurate and truthful as possible. Any attempt to mislead, hide, get cute or “split hairs” with the facts of the case will only serve to weaken your case, if not completely sabotage it.
What is the Test for Getting a Contact Order?
This is the part that seemed to confound judges (and thus, lawyers) in the past. Not anymore. Under section 24 (1), a person must show that it is in the best interests of the child for them to have contact with the non-parent.
Sounds simple enough, right?
Actually, it is not as easy as it seems. But thankfully, under section 24 (3), there are many factors that are set out to help a judge decide whether such proposed contact is what is best for a child. This subsection has been the subject of many court cases. Once again, it is beyond the scope of this blog to provide a detailed summary of the court cases, but the following points can be made:
- In considering these factors, the court is required to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being;”
- There may be conflicts in attempting to weigh the enumerated criteria. Any such difficulties should be resolved by ensuring that the child’s physical, emotional, and psychological safety, security, and well-being are promoted;
- The list of factors is not a “checklist” that will be tabulated, with the highest score “winning;”
Will a Judge Give More Importance to What the Parent or Parents Have to Say?
Not necessarily. The court is not concerned with what a parent wants, or even what the non-parent wants. Their decision is based on a child-focused approach to resolving the dispute, and not on the wishes/preferences of the battling parties.
In reaching a decision, whether on a temporary or final basis, a judge will assess the credibility and reliability of the non-parent’s evidence in support of contact. The same will go for the parent or parents, too. Please understand that credibility and reliability are two different things. As one judge has stated, “Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”
So, What’s a Judge to Do?
This is the proverbial million-dollar-question. As I say at the end of all my blogs, each case is unique, and by that I mean that each case presents its own set of facts that will help a judge decide what is best for the subject child, and not necessarily what is best for either or both of the feuding parties. One change in the facts can result in one result in Case A, and a markedly different one in Case B.
Generally speaking, a court likes to see children have a happy and loving relationship with their extended relatives. In most cases, the extended family members were not responsible in any way for the end of the parental relationship. So, sometimes a judge may ask “why should the grandparent suffer?” But as one recent Supreme Court of Canada decision has set out, “biology is not everything,” meaning that, just because there is a biological tie, it does not automatically mean there has to be a relationship, or that a contact order will automatically be in the child’s best interests. Each case will be assessed on its own merits.
As you can see by this blog, although grandparent or other non-parent contact with a child may seem simple, the facts and the legal issues that get raised are not be easily resolvable. The issue is not how much you love your grandchild, or even how much they love you; although these are factors, they are not absolutely determinative. By using all the factors listed in the CLRA as a collective to show that the child will be well-served by having a contact order with you, you just might be able to enjoy (once again) the unconditional love that is usually shared between a grandparent and a grandchild.